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IRRIGATION    INSTITUTIONS 


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THE    C I XI  Z>EN\S  .^LIBRARY 

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Irrigation   Institutions 


A   DISCUSSION   OF  THE  ECONOMIC  AND  LEGAL 

QUESTIONS  CREATED    BY  THE  GROWTH  OF 

IRRIGATED  AGRICULTURE  IN  THE  WEST 


BY 

ELWOOD    MRA.D,  C.E.,  M.S. 

Chief  of  Irrigation  Investigations,  United  States  Department  of  Agricul- 
ture ;  Professor  of  Institutions  and  Practice  of  Irrigation  in  the 
University  of  California  ;  and  Special  Lecturer  on  Irri- 
gation Engineering  in  Harvard  University 


|50tft 

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COPYRIGHT.  1903, 
BY  THE  MACMILLAN  COMPANY. 


Set  up  and  electrotyped.      Published  January,  1903. 
Reprinted"  February,  1907;  July,  1909  ;  September,  1910. 


NortoooU 

J.  S.  Gushing  &  Co.  —  Berwick  k  Smith  Co. 
Norwood,  Mass.,  U.S.A. 


PREFACE 

THIS  work  is  based  on  twenty  years'  experience 
in  the  development  of  irrigated  agriculture  in  the 
arid  West.  Fifteen  years  of  this  time  were  de- 
voted to  the  study  and  administration  of  irrigation 
laws  as  assistant  State  engineer  of  one  common- 
wealth and  territorial  and  State  engineer  of  another. 
The  duties  of  these  positions  brought  the  writer 
into  personal  and  official  relations  with  all  classes 
of  men  to  whom  the  problems  of  irrigation  were 
of  vital  interest.  These  included  not  only  farmers, 
ditch  builders,  and  investors  in  irrigation  securi- 
ties, but  also  legislators  and  jurists  who  were  shap- 
ing the  legal  principles  which  are  to  control  the 
distribution  and  use  of  Western  water-supplies, 
and  the  social  and  economic  fabric  under  which 
unnumbered  millions  of  people  must  dwell. 

All  phases  of  the  subject  had  to  be  dealt  with. 
The  plans  for  canals  to  carry  water  far  over  the 
thirsty  plains  had  to  be  passed  upon ;  advice  had 
to  be  given  regarding  the  best  methods  of  apply- 
ing water  to  the  land  and  the  amounts  required 
to  bring  crops  to  maturity.  The  problems  of  co- 
operation and  organization,  inseparably  connected 
with  irrigated  agriculture,  had  to  be  studied. 
Head-gates  had  to  be  closed  in  times  of  scarcity, 


PREFACE 

in  order  that  other  users  of  water  should  receive 
their  just  share  of  the  common  supply. 

The  lesson  of  these  years  is  that  the  vital  agri- 
cultural problem  of  the  arid  West  is  to  establish 
just  and  stable  titles  to  water  and  provide  for 
their  efficient  protection  in  times  of  need.  Every 
farmer  in  this  region  comes  to  understand  the 
overshadowing  importance  of  water.  Their  farms 
extend  along  many  rivers  for  scores  and  even 
hundreds  of  miles.  Every  irrigator  from  a  stream 
is  bound  to  his  fellow-irrigators  by  their  common 
tie  of  dependence  upon  it.  The  amount  diverted 
by  one  ditch  is  a  matter  of  concern  to  all  other 
ditches  below,  because  it  affects  the  volume  re- 
maining for  their  use.  The  independent  life  of 
the  farmer  in  humid  lands  is  impossible.  Irri- 
gated agriculture  is  an  organized  industry,  and 
the  prosperity  and  happiness  of  those  engaged  in 
it  are  largely  determined  by  the  character  of  its 
institutions. 

The  changes  wrought  by  irrigation  in  the  last 
half  century  have  been  little  less  than  marvellous. 
The  highest-priced  farming  lands  on  this  continent 
are  found  in  areas  once  regarded  as  desert  and 
worthless,  and  great  cities  have  been  reared  in 
regions  it  was  once  believed  would  always  be 
dreary  solitudes.  In  some  sections  material  de- 
velopment has  outrun  the  creation  of  institutions 
needed  to  insure  enduring  success.  Irrigation 
laws  are  so  ambiguous  or  contradictory  that  the 
finite  intellect  is  not  able  to  interpret  their  mean- 
ing. The  water  rights  which  govern  the  value  of 

vi 


PREFACE 

farms  have  many  forms  and  are  acquired  by  many 
methods.  In  one  respect,  however,  they  are  all 
alike ;  no  matter  whether  acquired  by  compliance 
with  a  statute  or  by  purchase  from  a  ditch  com- 
pany, they  are  a  source  of  more  perplexity  at  the 
outset  and  of  more  anxious  thoughts  afterward 
than  are  all  the  other  questions  of  irrigation  com- 
bined. The  irrigator  whose  water  right  does  not 
furnish  grounds  for  either  an  inquiry  or  a  griev- 
ance is  a  rare  exception. 

Nor  are  irrigators  alone  in  finding  the  issues 
created  by  the  use  of  streams  hard  to  define. 
Lawmakers  and  courts  hav^e  found  them  equally 
perplexing.  They  involve  4he  determination  of 
the  kind  of  ownership  which  shall  be  recognized 
in  the  rains  and  snows  which  are  gathered  together 
in  rivers,  in  order  that  each  user  shall  receive  his 
proper  share  and  monopolies  in  water  be  prevented. 

Although  the  field  for  the  study  of  the  engi- 
neering and  agricultural  problems  of  irrigation  is 
a  broad  and  inviting  one,  its  problems  are  not  so 
urgent  as  those  which  relate  to  the  ownership  and 
distribution  of  the  water-supply.  Neither  is  there 
any  other  issue  about  which  irrigators  are  so 
greatly  concerned. 

The  problems  of  irrigation  are  not,  however,  of 
water  alone,  but  of  land  and  water.  In  many 
parts  of  the  arid  West  ability  to  control  the  use 
of  contiguous  grazing  lands  is  absolutely  necessary 
to  the  success  of  irrigation,  since  farming  can  only 
be  carried  on  with  profit  in  connection  with  grow- 
ing live  stock.  Among  farmers  so  situated,  range 

vii 


PREFACE 

rights  are  almost  as  important  as  water  rights,  but 
under  existing  laws  no  such  rights  on  the  public 
domain  can  be  maintained  except  by  force. 

The  opening  years  of  the  twentieth  century  have 
brought  a  larger  and  truer  conception  of  the  value 
of  the  arid  West  and  of  the  part  it  is  to  play  in 
the  industrial  life  of  this  nation.  It  is  now  realized 
that  its  valleys  are  in  time  to  be  the  homes  of 
many  millions  of  people,  and  that  under  just  and 
wise  policies  it  is  possible  to  create  homes  which 
will  represent  a  higher  average  of  human  comfort 
and  better  social  and  industrial  conditions  than 
can  be  found  elsewhere  save  in  few  places  on  the 
globe.  The  interest  of  the  nation  has  been  awak- 
ened to  the  opportunities  here  presented,  and  the 
civic  pride  of  Western  communities  has  been 
aroused  to  secure  the  creation  of  irrigation  codes 
which  will  be  worthy  of  a  self-governing  people. 
As  an  aid  to  local  effort,  the  general  government 
is  engaged  in  gathering  facts  on  which  future 
developments  should  be  based.  The  Department 
of  the  Interior  is  measuring  the  water-supply, 
and  finding  out  where  it  can  be  used  to  the  best 
advantage  and  with  the  largest  return.  The  De- 
partment of  Agriculture  is  studying  the  methods 
of  distributing  and  using  water  in  order  to  promote 
its  more  skilful  and  effective  use,  and  is  inquiring 
into  the  social  and  legal  questions  created  by  the 
use  of  streams  in  irrigation,  both  in  this  country 
and  in  other  lands.  From  its  beginning  the  writer 
has  been  in  charge  of  the  latter  investigation.  It 
is  hoped  that  what  is  here  written  will  be  an  influ- 
viii 


PREFACE 

ence  for  good.  The  convictions  expressed  have 
been  more  largely  shaped  by  what  has  been  seen 
than  by  what  has  been  read.  They  are  the  result 
of  careful  study,  having  at  its  foundation  an  abid- 
ing faith  in  the  future  importance  of  the  arid  West, 
a  pride  in  the  success  already  won,  a  belief  in  the 
future  greatness  of  the  regions  most  concerned, 
and  a  profound  sympathy  for  the  pioneers  in  the 
development  of  these  regions,  in  the  perplexities 
and  uncertainties  which  have  beset  them. 

This  work  was  originally  prepared  for  a  course 
of  lectures  on  the  Institutions  and  Practice  of  Irri- 
gation in  the  University  of  California.  In  their 
preparation,  the  irrigation  bulletins  of  the  Office 
of  Experiment  Stations  were  freely  drawn  upon. 
Dr.  A.  C  True,  director,  and  Mr.  R.  P.  Teele,  Edi- 
torial assistant,  have  rendered  valuable  assistance 
in  this  connection,  which  is  here  gratefully  ac- 
knowledged. The  writings  of  Colonel  E.  S.  Net- 
tleton  and  Mr.  William  E.  Smythe  have  been  full 
of  suggestions,  and  Mr.  C.  T.  Johnston,  Professor 
J.  M.  Wilson,  Hon.  J.  E.  Field,  Mr.  W.  H.  Code, 
Hon.  D.  W.  Ross,  Professor  S.  Fortier,  Mr.  Frank 
Adams,  Hon.  J.  S.  Greene,  and  Hon.  Adna  Dob- 
son  are  among  those  to  whom  the  writer  is  in- 
debted for  information. 


CONTENTS 

PAGE 

PREFACE      v 

CHAPTER 

I.  INTRODUCTION i 

II.  LAND  LAWS  OF  THE  ARnp  REGION         .        .  13 

III.  THE  BEGINNINGS  OF  IRRIGATION     ...  41 

IV.  THE  DOCTRINE  OF  APPROPRIATION         .        .  60 
V.  CONTRACT  WATER  RIGHTS      ....  88 

VI.  MEASUREMENT  OF  WATER       .        .        .        .100 

VII.  THE  DUTY  OF  WATER 116 

VIII.  IRRIGATION  IN  COLORADO       .        .        .        .143 

IX.  IRRIGATION  IN  CALIFORNIA     .        .        .        .180 

X.  IRRIGATION  IN  UTAH 220 

XI.  IRRIGATION  IN  WYOMING         ....    247 

XII.    IRRIGATION  IN  THE  OTHER  ARID  AND  SEMI- 
ARID  STATES 275 

XIII.  RIPARIAN  AND  INTERSTATE  RIGHTS        .        .319 

XIV.  METHODS  AND  MEASURES    NEEDED  FOR  FU- 

TURE DEVELOPMENT 344 


IRRIGATION   INSTITUTIONS 

CHAPTER   I 
INTRODUCTION 

THE  arid  region  of  the  United  States  is  destined 
in  the  near  future  to  have  a  large  place  in  national 
affairs.  This  is  due  in  part  to  the  value  of  its 
unused  resources  and  in  part  to  the  need  of  their 
development. 

Our  population  has  been  doubling  with  each 
quarter  of  a  century,  and,  while  there  will  hardly 
be  so  rapid  an  increase  in  the  future,  the  prediction 
seems  safe  that  by  the  end  of  another  fifty  years 
we  shall  have  in  this  country  over  200,000,000 
people  to  feed  and  clothe.  We  have  a  significant 
warning  of  what  is  before  us  in  the  present  short- 
age and  resulting  high  price  of  beef.  Statistics 
show  that  there  are  now  10,000,000  fewer  cattle  in 
the  United  States  than  there  were  ten  years  ago, 
and  in  that  time  the  number  of  people  to  be  fed 
has  increased  10,000,000. 

Up  to  the  present,  the  vacant  fertile  districts  of 
the  humid  States  have  been  chiefly  relied  upon  to 
meet  the  demands  of  the  nation's  growth.  They 
have  supplied  homes  for  our  increasing  agricultural 


IRRIGATION    INSTITUTIONS 

population,  and  replaced  lands  rendered  unpro- 
ductive by  erosion  and  impoverished  by  wasteful 
methods  of  culture.  We  have  now,  however, 
reached  the  limits  of  such  expansion.  More  cul- 
tivated land  must  be  provided,  or  better  use  made 
of  that  now  occupied.  In  both  directions  the  un- 
inhabited and  mismanaged  areas  of  the  arid  region 
are  full  of  opportunities. 

A  realization  of  the  possibilities  of  this  region 
and  of  what  man  can  accomplish  by  a  right  use  of 
its  resources  has  been  of  slow  growth.  To  the 
early  fur  traders  and  explorers  the  arid  region  was 
a  dreary,  worthless  waste.  To  neither  Bonneville, 
Fremont,  nor  any  of  the  multitude  who  crossed  its 
vast  expanse  to  reach  the  golden  rivers  of  Cali- 
fornia was  there  given  any  prophetic  vision  of  the 
magic  to  be  wrought  by  irrigation.  Nor  is  this 
surprising.  It  is  difficult  to  imagine  anything 
less  attractive  than  the  stretches  of  barren  sand 
broken  only  by  the  isolated  yuccas  of  the  Mojave 
Desert,  or  anything  more  dreary  than  the  crucifix- 
ion thorn  of  Arizona.  Only  in  localities  where  the 
work  of  reclamation  has  been  in  progress  long 
enough  to  permit  the  growth  of  trees,  flowers,  and 
shrubs  can  the  possibilities  of  the  soil  and  climate 
be  appreciated.  No  greater  contrast  can  be  found 
anywhere  than  is  afforded  by  a  comparison  of  the 
desert  above  ditches  and  the  cultivated  fields  below 
them.  Perhaps  one  of  the  most  striking  illustra- 
tions of  this  is  to  be  found  in  the  Salt  River  Valley, 
Arizona.  Here,  after  a  long  and  tiresome  journey 

2 


INTRODUCTION 

through  a  desolate  and  apparently  worthless  region, 
the  traveller  suddenly  finds  himself  confronted  by 
homes  rivalling  in  taste  and  convenience  those  of 
the  Eastern  States,  and  surrounded  by  orchards 
and  gardens  which  resemble  the  century-old  crea- 
tions of  France  and  Italy  more  than  the  develop- 
ment of  the  past  twenty  years. 

The  arid  West  is  the  nation's  farm.  It  contains 
all  that  is  left  of  the  public  domain,  and  is  the 
chief  hope  of  those  who  dream  of  enjoying  landed 
independence,  but  who  have  little  beside  industry 
and  self-denial  with  which  to  secure  it.  As  it  is 
now,  this  land  has  little  value.  This  is  not  because 
the  land  lacks  fertility,  but  because  it  lacks  mois- 
ture. Where  rivers  have  been  turned  from  their 
courses  the  products  which  have  resulted  equal  in 
excellence  and  amount  those  of  the  most  favored 
district  of  ample  rainfall. 

After  this  brief  statement  of  the  economic  im- 
portance and  possibilities  of  American  irrigation, 
it  is  interesting  t6  consider  the  physical  conditions 
which  are  to  govern  its  development  and  see  amid 
what  surroundings  so  large  a  future  population 
must  dwell,  and  what  are  the  resources  upon  which 
it  will  rear  its  economic  edifice. 

The  climate  of  the  western  half  of  the  United 
States  finds  its  chief  characteristic  in  its  aridity  or 
dryness.  The  heat  of  the  Southern  summers  and 
the  cold  of  the  Northern  winters  are  alike  tempered 
and  mitigated  by  this  aridity.  The  arid  region 
knows  neither  the  humid  heat  which  prostrates 

3 


IRRIGATION    INSTITUTIONS 

nor  the  humid  cold  which  penetrates.  Its  moun- 
tain valleys  are  recognized  natural  sanitaria  to 
which  thousands  of  persons  must  go  each  year  in 
order  to  live. 

The  dominant  feature  of  its  topography  is  the 
mountains.  On  every  hand  a  rugged  horizon 
meets  the  view.  From  north  to  south  —  from 
Canada  to  Mexico  —  the  Rocky  Mountain  range 
forms  the  backbone  of  the  continent.  Far  to  the 
west  and  parallel  with  the  Rocky  Mountains  the 
Sierra  Nevada  and  Cascade  ranges  lift  their 
barriers  to  intercept  the  passing  moisture  from  the 
Pacific  Ocean  and  condense  it  into  snow.  Between 
these  principal  chains  are  many  connecting  ranges 
and  outlying  spurs  which  make  of  that  region  a 
succession  of  mountains  and  valleys,  of  forests  and 
deserts.  Down  these  mountains  course  raging 
torrents  which  unite  to  form  the  sinuous  rivers  that 
wind  across  the  lonesome  plains  finally  to  sink  into 
the  sands  or  make  their  difficult  way  to  the  distant 
ocean. 

West  of  the  Rocky  Mountain  range  the  lands 
capable  of  cultivation  lie  in  the  valleys,  rising  with 
gradual  slope  on  either  side  of  the  streams  to  meet 
the  foothills.  Some  of  these  valleys  are  narrow, 
and  the  tillable  lands  will  accommodate  only  hun- 
dreds. Along  other  streams  the  areas  are  more 
extensive  and  will  support  thousands  or  tens  of 
thousands,  and  along  a  few,  like  the  Snake,  the 
Yellowstone,  and  the  Sacramento,  millions  may 
dwell.  East  of  the  Rocky  Mountains  there  is,  in 

4 


INTRODUCTION 

addition  to  the  slopes  toward  the  streams,  a  general 
slope  extending  for  hundreds  of  miles  from  the 
base  of  the  range  toward  the  Missouri  and  Missis- 
sippi rivers.  All  of  this  land  is  fertile,  the  greater 
part  of  it  adapted  to  the  distribution  of  water,  and 
the  area  which  can  be  reclaimed  is  limited  only  by 
the  water-supply. 

If  every  drop  of  water  which  falls  on  the  moun- 
tain summits  could  be  utilized,  it  is  not  likely  that 
more  than  ten  per  cent  of  the  total  area  of  the 
arid  West  could  be  irrigated,  and  it  is  certain  that, 
because  of  physical  obstacles,  it  will  never  be  pos- 
sible to  get  water  to  even  this  small  percentage. 
As  an  illustration  of  what  is  meant  by  this  it  may 
be  stated  that  the  Columbia  River  is  from  three 
hundred  to  fifteen  hundred  feet  below  the  surface 
of  the  bordering  arid  table-land  in  northeastern 
Washington.  It  would  be  impracticable  to  raise  its 
water  to  the  lands  requiring  irrigation.  Through- 
out a  large  part  of  its  course  in  Montana  and  the 
Dakotas,  the  Missouri  River  flows  in  a  deep  chan- 
nel, and  as  it  falls  only  two  or  three  feet  per  mile, 
the  elevation  of  its  water  to  the  level  of  the  land 
which  might  be  irrigated  is  at  present  practically 
impossible,  because  the  work  necessary  for  such 
utilization  will  cost  more  than  the  land  and  the 
water  are  worth. 

Back  of  the  irrigated  lands  are  millions  of  acres 
of  exceptionally  fertile  land  which  can  neither  be 
irrigated  nor  cultivated  without  irrigation.  Some 
of  it  cannot  be  irrigated  because  the  surface  is  too 

5 


IRRIGATION    INSTITUTIONS 

broken  for  the  distribution  of  water.  The  bad 
lands  of  Dakota  and  Montana,  the  lands  overflowed 
with  lava  in  Idaho,  and  the  broken  ridges  which 
border  the  Snake  and  the  Columbia  in  Washington 
are  illustrations.  On  the  other  hand,  there  are 
millions  and  millions  of  acres  with  slopes  so  gentle 
and  uniform  that  nature  seems  to  have  designed 
the  land  for  the  furrows  and  fields  of  the  irrigated 
farm.  It  will  never  be  farmed,  however,  because 
water  is  lacking.  Many  whose  enthusiasm  outruns 
their  judgment  are  inclined  to  believe  that  these 
attractive  possibilities  will  in  time  be  realized  in 
some  now  unknown  way.  The  benefits  which 
would  come  from  this  have  given  rise  to  theories  of 
rivers  flowing  beneath  the  surface  where  science 
is  unable  to  find  a  source  for  such  a  water-supply. 
Any  one  who  considers  the  matter  carefully  realizes 
that  the  domain  of  irrigation  is  restricted  within 
narrow  limits,  and  that  only  calamity  can  come 
from  trying  to  extend  the  limits  of  settlement 
beyond  the  possibilities  of  the  known  and  assured 
water-supply.  Only  a  small  portion  of  the  lands 
of  the  West  suited  to  irrigation  can  be  watered,  but 
must  always  remain  grazing  lands,  having  less 
agricultural  value  than  they  possess  to-day  unless 
measures  are  taken  for  their  proper  management. 

The  scanty  but  nutritious  grasses  which  the  dry 
climate  of  the  arid  West  causes  to  cure  perfectly 
furnish,  winter  and  summer,  all  the  food  required 
by  millions  of  live  stock,  and  this  pasturage  has 
been  a  dominant  factor  in  the  settlement  of  many 

6 


INTRODUCTION 

of  the  arid  commonwealths.  The  grazing  lands 
have,  therefore,  in  the  aggregate  great  productive 
value,  and  this,  joined  to  the  fact  that  they  are 
many  times  the  area  of  the  lands  which  can  be 
irrigated,  renders  their  management  an  important 
factor  in  irrigation  development. 

The  lowest  lands  irrigated  are  in  the  Salton 
Desert,  near  the  mouth  of  the  Colorado  River, 
150  feet  below  sea-level.  On  the  head  of  this 
river  in  Wyoming  grain  ripens  a  mile  and  a 
half  above  sea-level.  The  mountain  barriers  and 
differences  in  elevation  have,  in  many  cases, 
counteracted  the  influence  of  latitude  and  given  a 
diversity  to  production,  which  must  be  taken  into 
account  in  forecasting  the  agricultural  future  of 
this  region  and  in  providing  for  its  development. 
On  the  Pacific  coast  the  Sierras,  acting  with  the 
Japan  current,  temper  the  climate  of  California  so 
that  oranges  ripen  at  Oroville,  nearly  200  miles 
north  of  San  Francisco,  as  surely  as  at  San  Diego, 
500  miles  south.  Black  Hamburg  grapes  are 
grown  in  the  open  air  in  Washington  less  than  200 
miles  south  of  the  Canadian  border.  On  the  other 
hand,  in  the  high  plateaus  bordering  the  Rocky 
Mountains,  there  are  many  irrigable  valleys  subject 
to  frost  every  month  in  the  year,  where  nothing 
can  be  grown  but  native  hay  and  a  few  of  the 
hardier  grains  and  vegetables.  The  value  of  water 
in  irrigation  depends  upon  what  can  be  grown  with 
it,  as  does  the  amount  of  money  which  can  profit- 
ably be  expended  in  building  ditches  and  reser- 

7 


IRRIGATION    INSTITUTIONS 

voirs.  Where  an  acre-foot  of  water  produces  a  crop 
worth  over  $100,  as  was  the  case  last  year  in  Cali- 
fornia, irrigators  can  afford  to  make  a  large  outlay 
for  a  water-supply.  In  some  sections  of  the  arid 
region  a  right  to  an  inch  of  water  sells  for  $1000; 
in  other  sections,  for  $5.  In  Southern  California 
an  orange  grove  of  twenty  acres  constitutes  an 
estate.  It  brings  a  larger  return  than  is  derived 
from  the  products  of  a  section  of  irrigated  land  in 
less-favored  localities. 

Another  factor  which  influences  the  area  which 
can  be  reclaimed  is  the  fluctuation  in  the  flow  of 
streams.  In  the  North  their  flow,  as  a  rule,  is  peren- 
nial, the  discharge  being  well  maintained  through- 
out the  irrigation  period.  Here  irrigators  give 
most  thought  to  the  construction  of  canals  and 
ditches.  In  the  southern  half  of  the  arid  region, 
streams  are  torrential  in  character.  They  carry 
the  bulk  of  their  discharge  in  sudden  floods.  The 
days  when  the  channels  are  filled  to  overflowing 
are  followed  by  weeks  when  they  are  empty  or 
nearly  so.  To  meet  the  needs  of  irrigation,  the 
flow  of  these  streams  has  to  be  equalized.  For 
this,  reservoirs  are  a  necessity,  and  the  problems 
of  storage  are  of  vital  importance.  The  Wichita, 
the  Pecos,  the  Rio  Grande,  and  the  streams  of 
Southern  California  are  illustrations  of  valleys 
where  storage  is  the  dominant  factor  in  agricul- 
tural development. 

In  some  sections  these  reservoirs  must  be  built 
in  the  channels  of  running  streams  which  carry 


INTRODUCTION 

large  quantities  of  sediment,  many  samples  taken 
carrying  from  five  to  twenty  per  cent  of  solid 
matter.  A  doubt  exists  as  to  whether  they  may 
not  fill  so  rapidly  as  to  end  their  usefulness  within 
a  brief  period.  No  reservoir  filled  with  water  so 
heavily  laden  with  sediment  can  be  perpetually 
maintained  without  some  means  of  sluicing  out  the 
silt  deposited.  It  will  not  do  to  establish  homes 
and  create  communities  under  reservoirs  which  will 
in  time  become  simply  deposits  of  mud.  This 
danger  does  not  menace  storage  works  in  the 
northern  part  of  the  arid  region.  The  waters  of 
Snake  River  have  emptied  into  Jackson  Lake  for 
centuries  without  filling  it  up  ;  Yellowstone  Lake  is 
a  natural  reservoir  of  the  Yellowstone  River,  and 
has  been  for  untold  ages,  yet  the  sediment  deposited 
has  not  materially  diminished  its  size,  and  hundreds 
of  similar  illustrations  might  be  added. 

The  importance  of  irrigation  in  the  arid  region  is 
not  to  be  measured  solely  by  the  value  of  the  crops 
grown,  but  as  well  by  the  influence  a  home-grown 
food-supply  will  exert  on  the  growth  and  prosperity 
of  other  industries.  It  must  be  kept  in  mind  that, 
while  many  of  the  irrigated  areas  are  small,  they 
are  the  nuclei  around  which  cluster  the  industries 
of  vast  outlying  districts.  They  furnish  the  hay, 
grain,  and  vegetables  for  the  mining  camp,  and  are 
an  insurance  against  destructive  losses  of  range 
live  stock  in  winter.  Without  irrigation,  the  region 
which  separates  the  humid  sections  of  the  Atlantic 
and  Pacific  coasts  would  be  a  far  more  disagreeable 

9 


IRRIGATION    INSTITUTIONS 

and  effective  barrier  to  trade  and  commerce  than 
it  is  to-day. 

To  the  mines  of  this  region  must  be  added  the 
forests  which  clothe  the  mountain  sides,  especially 
those  of  the  North  and  Northwest.  There  the 
mountains  are  to  a  large  extent  made  up  of  ground 
that  is  still  virgin,  trodden  only  by  the  hunter  or 
the  adventurous  explorer. 

The  mountain  streams  furnish  rare  opportunities 
for  the  development  of  water-power.  The  Sho- 
shone  Falls  in  Idaho  are  but  little  inferior  to  those 
of  Niagara,  and  the  hundreds  of  streams  which  fall 
from  the  io,ooo-foot  level  of  the  Rocky  Mountain 
range  to  the  4,ooofoot  or  5,ooo-foot  level  of  the 
plains  at  their  base,  are  destined  to  turn  more 
wheels  of  industry  than  have  yet  been  harnessed 
east  or  west  of  the  Mississippi  River. 

In  order  to  estimate  rightly  the  value  of  the  irri- 
gated farms  of  the  arid  West,  we  must  take  into 
consideration  their  environment.  They  have  back 
of  them  the  mine,  the  furnace,  and  the  factory. 
They  are  surrounded  and  supplemented  by  valu- 
able grazing  areas.  Western  America  is  not  only 
the  country's  storehouse  of  gold  and  silver,  but  it 
also  contains  immense  deposits  of  copper,  coal,  oil, 
and  iron,  and  cannot  fail  to  have  a  prosperous  and 
varied  industrial  life.  Here  there  can  be  no  one- 
sided development,  no  community  exclusively  de- 
voted to  the  production  of  corn,  wheat,  or  cotton, 
to  manufacturing,  or  to  commerce.  The  farm,  the 
stock  ranch,  the  lumber  camp,  the  mine,  the  factory, 

10 


INTRODUCTION 

and  the  store  are  destined  to  grow  up  and  to  flour- 
ish side  by  side,  each  drawing  support  from  and 
furnishing  sustenance  to  the  others. 

The  importance  of  irrigation  is  now  realized  in 
the  West  as  never  before,  and  the  best  elements  of 
citizenship  are  endeavoring  to  remove  the  obstacles 
which  have  heretofore  hampered  both  public  and 
private  enterprise.  The  East,  as  a  whole,  is  begin- 
ning to  realize  the  great  part  which  the  West  is  to 
have  in  the  events  of  the  twentieth  century.  World- 
wide forces  are  working  to  hasten  the  day  of  its 
complete  development,  and  of  the  utilization  of  all 
of  its  rich  resources. 

The  essence  of  the  problem  to  be  met  at  the 
outset  is  the  control  and  distribution  of  the  water- 
supply,  since  not  only  the  enduring  prosperity  but 
the  very  existence  of  the  homes  created  will  be  con- 
ditioned upon  the  ability  to  use  the  rivers  of  the 
region  for  irrigation.  The  diverse  interests  of  in- 
dividuals and  communities,  and  even  of  different 
states,  will  all  depend  on  streams  flowing  from  a 
common  source.  To  reclaim  all  the  land  possible 
will  involve  the  spreading  of  water  over  a  surface 
as  large  as  New  England  with  New  York  added. 
Standing  now  near  the  beginning  of  things  and 
looking  down  the  vista  of  the  future,  we  can  see  in 
the  courses  of  these  rivers  the  dim  outline  of  a 
mighty  civilization,  blessed  with  peace  and  crowned 
with  a  remarkable  degree  of  prosperity,  in  case  wise 
laws  and  just  policies  shall  prevail  in  the  years  of 
the  immediate  future,  while  institutions  are  forming. 

ii 


IRRIGATION    INSTITUTIONS 

But  if  it  be  otherwise,  —  if  greed  and  ignorance  are 
allowed  to  govern,  and  we  ignore  the  experience  of 
older  countries  than  ours,  —  there  will  remain  to  us 
only  a  gloomy  forecast  of  legal,  economic,  and, 
possibly,  civic  strife. 


12 


CHAPTER   II 

LAND  LAWS  OF  THE  ARID  REGION 

THE  United  States  has  been  the  largest  land- 
owner on  earth.  The  General  Land  Office  has 
administered  the  greatest  domain  ever  drawn  to- 
gether under  one  control.  Exclusive  of  Alaska 
and  the  recently  acquired  insular  possessions,  the 
public  lands,  sold  and  unsold,  amount  to  about 
1,441,436,160  acres.  Of  this,  over  100,000,000 
acres  were  given  away  in  the  form  of  bounties  for 
military  services;  nearly  65,000,000  acres  passed 
into  private  ownership  under  the  swamp  land  law ; 
over  140,000,000  acres  were  donated  to  railroads ; 
over  105,000,000  acres  were  given  to  the  States  for 
educational  and  other  purposes.  There  remain 
unsold  546,113,468  acres,  practically  all  of  which 
is  in  the  arid  region.  The  remainder  has  passed 
directly  from  the  general  government  into  private 
ownership,  either  under  some  of  the  agricultural 
land  laws  or  under  the  different  mineral,  timber, 
or  stone  acts. 

In  the  early  days  of  the  nation  the  public  lands 
were  valued  chiefly  for  what  they  would  bring. 
They  were  an  asset  to  be  sold  in  whatever  way 
would  bring  the  quickest  and  largest  returns.  No 
one  could  buy  less  than  640  acres ;  but  the  only 

13 


IRRIGATION   INSTITUTIONS 

maximum  limit  was  his  ability  to  pay.  The  first 
plan  for  the  disposal  of  the  public  lands  was 
prepared  by  Alexander  Hamilton  in  1790.  He 
recommended  the  selling  of  large  tracts  to  men 
of  wealth  and  associations,  and  the  setting  aside  of 
tracts,  not  to  exceed  100  acres  each,  for  actual 
settlers.  In  1800  320  acres  was  made  the  unit  of 
segregation  in  the  eastern  part  of  the  domain  and 
640  acres  farther  west.  Fourteen  years  later 
Albert  Gallatin,  in  describing  the  public  land 
system,  says  all  public  lands  not  otherwise  pro- 
vided for  were  offered  for  sale  in  i6oacre  tracts. 
A  law  passed  in  1820  cut  this  in  two  by  permitting 
sales  of  80  acres. 

Early  in  the  nineteenth  century  it  began  to  be 
realized  that  the  public  domain  was  worth  more  as 
a  means  of  providing  homes  than  for  its  contribu- 
tions to  the  running  expenses  of  the  government, 
and  changes  were  made  which  would  favor  its  dis- 
posal in  tracts  suited  in  size  to  the  needs  of  a  set- 
tler and  his  family.  The  Preemption  Law,  which 
took  its  final  form  in  1841,  fixed  this  area  at  160 
acres,  and  this  was  followed  when  the  Homestead 
Law  was  passed  in  1862.  This  unit  worked  well 
in  the  disposal  of  the  fertile  domain  of  the  North- 
west and  the  Mississippi  Valley;  but  when  the 
wave  of  settlement  which  peopled  this  region  had 
reached  the  arid  slopes  which  border  the  eastern 
base  of  the  Rocky  Mountains,  it  was  found  to  be  a 
misfit.  Here  crops  could  not  be  grown  by  the  aid 
of  rainfall  alone,  and  only  a  small  fraction  of  the 


LAND   LAWS   OF  THE   ARID   REGION 

land  could  be  irrigated.  One  hundred  and  sixty 
acres  as  a  farm  unit  was  an  economic  success  in 
the  settlement  of  Iowa;  but  it  was  ridiculous  in 
Arizona,  because  a  whole  township  would  not  sup- 
port a  settler  if  compelled  to  cultivate  it  in  its 
natural  state.  A  land  unit  not  in  harmony  with 
climatic  conditions  placed  an  obstacle  in  the  way 
of  natural  development,  and  a  majority  of  the 
pioneers  gave  up  trying  to  own  or  improve  the 
land  they  used.  They  found  it  more  profitable  to 
become  range  stockmen  and  to  leave  the  land 
in  the  possession  of  the  government,  while  they 
pastured  it  without  rental  or  restriction. 

The  experience  of  the  United  States  in  extend- 
ing humid  land  laws  to  an  arid  region  had  its 
counterpart  in  the  attempt  of  Texas  to  apply  an 
arid  land  law  to  a  humid  region.  When  Texas 
became  a  republic,  it  inherited,  its  land  system 
from  Mexico,  an  arid  country.  This  law  made  a 
homestead  4470  acres,  or  nearly  28  times  the 
homestead  of  the  Ohio  Valley.  It  is  an  interest- 
ing fact  that  the  productive  capacity  of  one  acre 
of  land  in  Ohio  or  Iowa  is  about  as  many  times 
that  of  an  acre  of  grazing  land  in  western  Texas, 
where  it  requires  from  20  to  30  acres  to  support  a 
single  steer.  This  law,  when  applied  to  the  re- 
gion for  which  it  was  framed,  worked  well;  but 
when  it  was  extended  to  the  fertile  valley  of  the 
Brazos,  in  eastern  Texas,  it  had  to  be  repealed 
because  no  individual  could  cultivate  or  make 
beneficial  use  of  4470  acres  of  agricultural  land 


IRRIGATION    INSTITUTIONS 

Land  laws  to  succeed  must  be  in  accord  with 
climatic  requirements.  A  sealskin  coat  is  an  excel- 
lent garment  in  Greenland,  but  a  useless  one  in 
Cuba.  The  Homestead  Law  served  a  beneficent 
purpose  throughout  large  sections  of  the  republic ; 
but  it  is  not  adapted  to  the  settlement  of  a  region 
where  practically  nothing  can  be  grown  except  by 
artificial  application  of  water.  This  fact  has  been 
learned  at  last  through  many  years  of  hardship 
and  disappointment,  at  the  cost  of  many  millions 
of  dollars. 

The  Preemption  Law,  passed  in  1841,  provided 
for  acquirement  of  160  acres  of  land  from  the 
public  domain,  by  settlement  and  payment  of  $1.25 
per  acre.  The  Homestead  Law  of  1862  provided 
for  the  acquirement  of  a  like  area  by  settlement 
alone,  cultivation  not  being  required.  To  the  Pre- 
emption and  Homestead  laws  there  was  added  in 
1873  the  Timber  Culture  Act.  This  gave  160 
acres  to  any  one  who  would  plant  and  cultivate 
trees  on  one-fourth  of  the  area.  The  purpose  of 
this  law  was  good ;  but  since  trees  will  not  grow 
on  the  arid  plains  of  the  West  without  irrigation, 
and  there  were  easier  ways  of  acquiring  irrigated 
land  than  through  this  act,  comparatively  few  fil- 
ings were  ever  carried  out  in  good  faith.  Out  of 
nearly  250,000  entries  less  than  60,000  were  proved 
upon,  and  but  few  of  these  complied  with  the  spirit 
of  the  law  where  they  fulfilled  its  letter. 

In  1877  Congress  passed  what  is  known  as  the 
Desert  Land  Act,  which  gave  640  acres  to  any  one 

16 


LAND   LAWS  OF   THE   ARID   REGION 

who  would  irrigate  it  and  pay  to  the  government 
$1.25  per  acre.  Residence  on  the  desert  lands 
was  not  required.  Under  these  successive  acts 
the  area  which  an  individual  could  acquire  grew, 
as  shown  below,  from  160  acres  to  1120. 

Preemption     .         .        .        .        .        «        .  160 

Homestead     .         .        *         .        •        .  .  ,  160 

Timber  Culture       .     ...»!/  .>.     •        •        .         .     160 
Desert   ...        *        *        .        .        .        .    640 

1,120 

Eleven  hundred  and  twenty  acres  is  more  land 
than  any  individual  of  moderate  means  can  suc- 
cessfully cultivate.  Especially  is  this  true  in  the 
arid  region.  Whoever  has  the  means  to  build 
the  ditches  and  prepare  this  much  land  for  culti- 
vation does  not  need  a  present  of  land  from  the 
government.  Even  where  these  laws  were  hon- 
estly observed,  the  generosity  exhibited  was  an 
economic  mistake.  The  land  which  one  individ- 
ual could  acquire  should  have  been  kept  at  a 
lower  limit,  in  order  that  the  public  domain  might 
serve  the  needs  of  a  larger  number  of  people. 
Giving  so  large  an  area  to  a  single  individual  en- 
couraged speculation  in  land  and  the  transfer  of 
the  more  valuable  portion  of  many  irrigable  val- 
leys to  men  who  acquired  them,  not  to  use  but  to 
sell.  The  inroads  made  on  the  public  domain 
caused  the  country  to  become  alarmed.  In  1890 
Congress  began  to  restrict  the  amount  of  land 
which  one  individual  could  acquire.  Filings  under 
the  Desert  Act  were  reduced  to  320  acres,  and 
c  17 


IRRIGATION   INSTITUTIONS 

both  the  Preemption  and  Timber  Culture  acts 
were  repealed. 

In  order  to  understand  what  is  involved  in  the 
reclamation  of  the  arid  region,  one  must  be  in- 
formed of  the  intimate  relation  which  exists  be- 
tween irrigation  and  the  practical  operation  of  the 
public  land  laws.  It  needs  no  argument  to  prove 
that  good  laws  will  promote  development,  and 
unwise  ones  retard  it,  but  it  has  not  been  under- 
stood that  from  the  beginning  of  Western  settle- 
ment, the  laws  in  force  have  been  a  potent  factor 
in  causing  the  financial  failure  of  canals  built  to 
reclaim  public  land,  and  have  thwarted  instead  of 
aided  the  efforts  of  the  actual  settler.  In  "The 
Conquest  of  the  Arid  Region  "  William  E.  Smythe 
characterizes  these  laws  as  "  a  system  which  cheats 
settlers,  hampers  enterprise,  destroys  investments, 
and  lays  broad  and  deep  the  foundation  of  eco- 
nomic wrong  in  the  arid  region."  These  evils  are 
not  due  to  a  deliberate  purpose,  but  to  the  inabil- 
ity of  legislators  to  understand  conditions  they 
have  never  seen.  The  nation  has  suffered  be- 
cause Congress,  in  dealing  with  this  question,  has 
been  adjusting  things  at  long  range. 

The  first  step  in  the  change  from  sage-brush 
deserts  to  fields  of  grain  is  the  construction  of  the 
ditch  or  canal.  Settlement  before  water  for  irri- 
gation has  been  provided  causes  needless  hard- 
ship. There  is  encountered  at  the  outset  a 
difference  between  agriculture  by  irrigation  and 
agriculture  by  rainfall,  which  is  radical  in  its 

18 


LAND   LAWS   OF  THE   ARID   REGION 

nature.  We  have  been  accustomed  to  regard  agri- 
culture as  a  non-capitalized  industry,  and  much 
loose  talk  has  been  indulged  in  about  farmers 
creating  homes  in  the  arid  West  by  their  unaided 
efforts  as  they  formerly  did  on  the  prairies  of 
Illinois  and  Iowa.  Those  who  attempt  this  find 
scenery  and  mountain  air  a  poor  support  while 
building  flumes  and  digging  ditches. 

This  misconception  of  the  preliminary  outlay 
required  has  caused  much  serious  hardship  to 
individuals,  and  has  stood  in  the  way  of  enacting 
proper  laws.  Every  one  recognizes  the  need  of 
capital  and  organization  in  the  building  of  rail- 
ways. There  is  no  one  who  does  not  appreciate 
the  necessity  for  money  in  starting  a  factory,  and 
who  would  not  recognize  the  absurdity  of  a  hod- 
carrier  trying,  without  aid,  to  erect  a  six-story 
block ;  yet  many  insist  that  the  equally  costly  and 
more  difficult  construction  which  must  precede 
the  watering  of  arid  lands,  can  be  carried  to  com- 
pletion by  home-seekers,  without  either  money, 
organization,  or  technical  acquaintance  with  the 
problems  to  be  solved. 

To  reclaim  these  lands  there  must  be  some  se- 
curity for  the  money  expended.  There  must  be 
settlers  to  use  the  ditches  and  till  the  soil  if  this 
money  is  to  be  repaid,  and  there  must  be  such 
measure  of  State  or  national  supervision  as  will 
protect  investments  in  canals  from  confiscation 
and  prevent  canal  companies  from  oppressing 
their  patrons. 

19 


IRRIGATION    INSTITUTIONS 

When  the  building  of  canals  to  water  public 
lands  began,  investors  in  these  properties  believed 
they  were  masters  of  the  situation.  Experience 
often  proved  them  to  be  its  victims.  The  building 
of  a  canal  changed  the  potential  value  of  the  land 
it  covered  from  grazing  to  farming  land,  and  often 
increased  its  selling  price  tenfold.  These  irrigable 
areas  were  the  field  for  the  land-grabber.  A  canal 
survey  was  a  signal  for  a  rush  to  the  land  office. 
While  the  land  laws  were  doubtless  intended  to  ben- 
efit actual  settlers,  speculators  have  often  been  able 
to  forestall  them.  The  opportunity  to  file  on  land 
under  a  ditch  is  usually  gone  before  the  actual 
settler  knows  of  it.  Men  who  are  not  farmers, 
and  who  have  no  intention  of  becoming  such, 
fasten  themselves,  by  speculative  land  filings,  as 
parasites  on  ditch  enterprises,  or  levy  toll  on  the 
actual  irrigator  when  he  arrives. 

When  the  Bear  River  Canal  was  begun  in  Utah, 
the  land  it  was  to  water  was  an  unoccupied  sage- 
brush desert.  Before  its  survey  was  completed,  and 
in  less  than  thirty  days  after  it  was  begun,  every 
acre  of  land  had  been  filed  upon.  Three  years 
later  not  one  acre  in  fifty  was  being  irrigated  by 
the  original  entry  men.  Before  the  survey  of 
the  canal  of  the  Wyoming  Development  Com- 
pany was  completed,  six  sections  of  the  best  land 
below  it  had  been  filed  on  by  speculators.  To 
protect  itself,  the  company  had  to  organize  a 
syndicate  to  file  on  the  land  under  the  Desert 
Act. 

20 


LAND   LAWS   OF   THE   ARID    REGION 

An  empty  canal  is  like  a  piece  of  idle  machinery ; 
it  constantly  diminishes  in  value.  The  winds  fill  it 
with  dust,  the  sun  shrinks  its  flumes,  the  storms 
wash  its  banks,  so  that  dry  weather  and  wet  weather 
alike  work  its  destruction.  To  the  expense  of  keep- 
ing it  in  order  is  added  the  interest  on  its  cost. 
Nothing  can  be  more  exasperating  than  the  plight 
of  the  owners  of  a  canal  where  the  lands  have  been 
filed  on  by  speculators  instead  of  cultivators.  Their 
property  is  a  white  elephant.  The  land-grabbers, 
are,  however,  serene.  They  are  not  required  to 
cultivate  their  homesteads ;  only  nominal  resi- 
dence for  fourteen  months  is  exacted,  and  until 
a  patent  is  received  there  are  no  taxes.  They 
can  wait.  The  canal  owner  cannot,  and  many 
landowners  sell  out  for  high,  prices.  The  use 
of  the  Homestead  Law  in  this-  way  has  wrecked 

.         .  .  V  . 

many  a  meritorious  irrigation  project. 

The  Desert  Land  Law  had  no  feature  to  warrant     fr 
its  original  enactment,  or  to  recommend  its  con- 
tinued existence.     Six  hundred  and  forty  acres  of 
irrigable  land  was  more  than  was  needed  for  the 
support  of  any  settler,  and  more  than  a  settler  of 
limited  means  could  improve  or  cultivate.     Irri- 
gated land  in  Southern  California  is  worth  $1,000 
an  acre.     To  give  away  640  acres  of  such  land  to 
a  single  individual  was  not  generosity ;  it  was  a  I    / 
profligate  surrender  of  a  great  public  resource. 

Under  this  law  many  thousand  acres  of  land, 
which  could  have  been  reclaimed  by  actual  set- 
tlers, have  passed  into  the  hands  of  non-resident 

21 


IRRIGATION    INSTITUTIONS 

owners,  and  are  now  held  as  speculative  proper- 
ties. The  law  has  done  nothing  to  promote  the 
construction  of  large  works,  or  to  promote  impor- 
tant investments  therein,  because  it  does  not  con- 
form to  physical  facts.  There  is  no  reason  for  its 
existence  in  its  present  form,  and  it  should  be  re- 
pealed. If  there  was  an  independent  water-supply 
for  each  320  acres,  or  if  every  man's  canal  could 
begin  and  end  on  his  own  land,  this  law  would  be 
an  admirable  institution ;  but  when  canals,  if  built 
at  all,  must  be  built  to  water  very  much  larger  areas, 
I  the  Desert  Land  Act  is  a  failure,  and  in  large  en- 
1  terprises,  if  at  all,  is  Its  only  field  of  usefulness. 

We  have  thus  far  considered  the  operation  of 
the  public  land  laws  in  relation  to  the  investment 
of  capital  in  irrigation  works.  They  should  pro- 
mote this,  and  in  addition  they  should  promote  the 
welfare  of  the  people  who  are  to  make  homes  on 
the  lands  irrigated.  They  cannot  do  this  so  long 
as  they  ignore  water  for  irrigation.  The  history 
of  all  irrigated  countries  shows  the  necessity  of 
\  uniting  with  the  soil  the  right  to  the  water  which 
»  reclaims  it.  Under  our  land  system  the  ownership 
of  these  joint  agents  of  production  is  divorced  at 
the  outset.  Title  to  the  land  comes  from  the  United 
States.  Title  to  water  comes  from  each  of  the  sev- 
eral States.  No  right  to  water  goes  with  a  land 
patent.  Each  arid  State  has  different  laws  gov- 
erning, water  rights,  and  in  only  two  is  there  legis- 
lation which  favors  the  attachment  of  these  rights 
to  the  soil. 

22 


LAND    LAWS   OF   THE   ARID   REGION 

In  arid  countries  water  rights  are  of  more  im- 
portance than  land  titles.  Without  water,  the 
land  has  little  value.  Wherever  water  and  land 
are  owned  apart  from  each  other,  there  is  a  ten- 
dency to  create  monopolies  in  water,  and  to  place 
the  tiller  of  the  soil  at  the  mercy  of  the  owner  of 
the  stream.  The  natural,  if  not  inevitable,  result 
of  our  land  system  is  to  create  such  separate  own- 
ership and  such  speculative  abuses.  No  industrial 
problem  of  the  West  equals  this  in  importance. 
The  institutions  now  being  created  will,  in  time, 
affect  a  population  greater  than  that  of  the  entire 
nation.  The  customs,  which  are  the  outcome  of 
primitive  conditions,  will  harden  into  laws,  and 
abuses  will  become  vested  rights.  No  adequate 
system  of  irrigation  laws,  or  any  enduring  pros- 
perity for  the  people  who  till  the  soil,  can  be  built 
on  separate  ownership  and  divided  control  of  land 
and  water.  The  fundamental  condition  of  success 
is  that  these  two  joint  agents  of  production  should 
be  disposed  of  together,  and  that  with  every  title 
to  irrigable  land  shouldr  go;  an  interest  in  the  stream 
which  gives  it  valued 

Influence  of  State  Lands  and  Special  Land  Laws 

When  investors  began  to  understand  the  dangers 
growing  out  of  speculative  filing  on  public  land  they 
looked  first  for  means  of  escaping  its  evils.  In 
two  States,  Colorado  and  California,  this  was  com- 
paratively easy.  In  Colorado  irrigation  companies 

23 


IRRIGATION    INSTITUTIONS 

purchased  the  lands  granted  to  the  Union  Pacific 
and  Denver  Pacific  railways.  They  were  not  then 
dependent  on  revenue  from  public  land,  and  were 
not  injured  through  its  control  by  speculative  filings. 
Later  on  irrigation  companies  arranged  with  State 
authorities  to  select  the  land  they  were  to  water, 
and  then  purchased  it  or  bargained  for  its  disposal 
by  the  State  to  actual  settlers  only.  In  California 
large  tracts  of  irrigable  land  were  purchased  di- 
rectly from  the  United  States  before  limitations 
were  imposed  on  the  acreage  which  could  be 
bought.  Spanish  grants  controlled  immense  areas, 
so  that  irrigation  has  been  confined  almost  wholly 
to  private  lands. 

The  State  lands  of  North  and  South  Dakota, 
Montana,  Wyoming,  Idaho,  and  Washington  can- 
not be  used  to  promote  irrigation  because  the  acts 
ceding  them  to  those  States  require  that  they 
must  be  sold  for  $10  an  acre,  which  is  a  prohibi- 
tive price. 

In  1894  Congress  passed  what  is  popularly  known 
as  the  Carey  Act,  which  gives  to  each  arid  State 
the  right  to  select  1,000,000  acres  of  land  and  con- 
trol its  irrigation  and  settlement.  Seven  States 
accepted  this  trust.  The  laws  of  five  of  these 
States  require  actual  settlement  and  cultivation  of 
the  land ;  limit  filings  to  160  acres ;  attach  the 
water  right  to  the  land,  and  provide  for  the  ulti- 
mate ownership  by  the  irrigators  of  the  ditches  on 
which  they  depend.  Wyoming  was  the  first  State 
to  accept  the  grant,  and  has  done  the  most  under 

24 


LAND    LAWS   OF   THE   ARID   REGION 

its  provisions.  The  second  and  third  largest  canals 
in  the  State  were  built  under  this  act.  Three 
large  projects  have  been  begun  under  this  act  in 
Idaho.  In  Wyoming  and  Idaho  land  is  sold  for 
fifty  cents  an  acre.  Terms  under  which  ditches 
are  built  and  sold  to  settlers  are  fixed  by  a 
contract  between  the  canal  owners  and  the 
State,  after  investigation  by  the  State  engineer 
to  determine  whether  the  project  is  feasible, 
and  whether  there  is  water  enough  to  irrigate  the 
land. 

Under  this  act,  there  can  be  no  speculative 
filing  on  land  or  building  of  ditches  for  which 
there  is  no  water.  Rights  to  the  use  of  water  are 
acquired  by  neither  canal  builder  nor  landowner, 
but  are  attached  to  the  land  reclaimed  and  are 
inseparable  therefrom.  Irrigators  own  both  the 
canal  and  the  land,  however,  and  know  before 
entering  upon  the  ownership  what  they  are  to  pay 
for  both,  and  that  there  will  be  an  ample  supply 
of  water.  The  superldnty  of  this  law  to  any 
other  arid  land  statute  is  unquestioned.  It  reg- 
ulates both  settlement  and  reclamation.  It  tends 
to  secure  the  building  of  better  works  through 
State  supervision,  and  insures  their  sale  to  settlers 
on  reasonable  terms.  It  protects  canal  companies 
against  controversies  with  farmers,  because  the 
State  fixes  the  selling  price  of  the  property.  It 
protects  the  public  against  speculative  ownership 
of  either  land  or  water.  There  is  no  profit  in  own- 
ing land  not  cultivated,  since  the  cost  of  operating 

25 


IRRIGATION   INSTITUTIONS 

the  canal  is  assessed  on  the  land  it  is  built  to  water, 
whether  or  not  it  is  farmed. 

So  far  as  the  limitations  of  the  law  permitted, 
it  has  proven  a  success  in  operation.  The  objec- 
tion to  it  lies  in  the  delay  and  expense  involved 
in  segregating  the  tracts  to  be  irrigated.  Maps 
and  plans  have  to  be  approved,  first  by  the  State 
and  then  by  the  Secretary  of  the  Interior.  There 
is  in  this  procedure  an  almost  endless  round  of 
red  tape,  involving  delays  and  expenses,  which 
restricts  the  usefulness  of  the  act  to  large  projects. 

There  was  an  objection  to  the  original  act  in 
the  limitation  of  its  operation  to  ten  years.  It 
takes  ten  years  to  settle  the  land  under  a  large 
canal,  and  men  have  been  afraid  to  engage  in 
extensive  projects,  for  fear  the  operation  of  the 
law  would  not  be  extended.  The  act  of  March  3, 
1901,  gives  the  Secretary  of  the  Interior  authority 
to  extend  the  time  for  reclamation  of  lands  not  to 
exceed  five  years,  making  the  whole  time  from  the 
selection  under  the  Carey  Law  not  to  exceed  fifteen 
years. 

Another  objection  to  the  law  is  that  it  is  unfair 
to  the  several  States.  It  requires  them  to  assume 
the  responsibility  and  expense  in  disposing  of  the 
land,  to  run  all  risks  of  financial  loss  in  the  build- 
ing of  canals,  and  to  be  at  all  times  subject  to  the 
scrutiny  of  the  Interior  Department,  yet  in  the 
final  outcome,  if  there  is  any  profit  in  the  enter- 
prise, it  must  be  paid  into  the  national  treasury. 

These  criticisms  have  thus  far  been  theoretical 
26 


LAND    LAWS   OF   THE   ARID   REGION 

only,  because  there  has  been  the  most  pleasant 
relation  and  cordial  cooperation  between  the  State 
and  national  authorities.  Another  unwise  feature 
of  the  law  is  the  prohibition  against  community 
fencing.  This  compels  each  individual  settler 
under  the  ditch  to  fence  his  own  land.  If  all 
the  lands  could  be  fenced  in  one  tract,  it  would 
be  a  measure  of  economy  at  a  time  when  every 
outlay  bears  most  heavily  on  settlers.  It  must  be 
kept  in  mind,  however,  that  this  law,  even  if  modi- 
fied as  suggested,  would  still  be  inadequate  legis- 
lation. No  arid  land  law  can  be  regarded  as 
satisfactory  or  complete  which  does  not  provide 
for  the  construction  of  canals  under  public  super- 
vision and  in  accordance  with  some  comprehensive 
plan,  or  which  does  not  deal  with  the  grazing  lands 
in  such  a  way  as  to  provide  for  their  union  with 
the  irrigable  lands. 

The  Grazing  Lands 

S*~\J 

The  greatest  product  of  Western  America  is 
grass.  Although  its  growth  is  stunted,  it  is  ex- 
ceedingly nutritious  and  the  dry  air  and  absence 
of  dews  and  rains,  which  cause  it  to  cure  naturally 
on  its  stem,  make  it  possible  for  cattle,  sheep, 
and  horses  to  live  on  it  in  winter  as  well  as  in 
summer.  When  this  discovery  was  made,  the 
Great  American  Desert  ceased  to  exist,  and  what 
is  known  as  the  range  industry  was  born.  From 
the  Gulf  to  Canada,  and  from  western  Kansas  and 

27 


IRRIGATION    INSTITUTIONS 

Nebraska  to  the  Sierras,  the  cattle  found-up  and 
the  mess  wagon  followed  close  on  the  disappearing 
Indian  and  buffalo. 

There  was  no  law  by  which  men  could  legally 
secure  control  of  the  land  they  occupied.  All  the 
land  laws  dealt  with  farming  land.  There  was  no 
provision  for  leasing  or  selling  the  grazing  land  in 
tracts  large  enough  to  be  of  any  service.  Hence 
the  range  stockmen  simply  took  possession  of  the 
country.  Each  man  chose  a  location  which  suited 
him,  fixed  in  a  rough  way  the  boundaries  of  his 
domain,  and  helped  to  create  a  public  sentiment 
which  made  it  unpleasant,  if  not  dangerous,  for 
a  later  comer  to  attempt  to  share  with  him  the 
territory  he  had  so  marked  out.  In  this  way, 
range  rights  came  to  have  all  the  force  of  law,  and 
the  men  who  first  occupied  the  country  came  to 
believe  that  they  had  a  vested  right  to  control  it 
forever,  and  looked  on  every  newcomer  as  an  im- 
pudent intruder  interfering  with  their  moral,  if 
not  their  legal,  rights. 

The  control  which  men  exercised  over  ranges 
was  one  of  sentiment,  however.  The  law  made 
it  illegal  to  fence.  The  absence  of  fences  made  it 
possible  for  live  stock  to  wander  long  distances. 
The  herds  on  contiguous  ranges  mingled  together 
and  made  it  necessary  to  establish  ownership  by 
methods  not  required  elsewhere.  The  absence  of 
permanent  control  and  the  inability  to  fence  made 
of  the  whole  country  an  open  common  and  gave 
to  the  business  a  migratory  character.  Cattle 

28 


LAND    LAWS   OF   THE   ARID   REGION 

trails  extended  for  a  thousand  miles  from  the 
breeding  grounds  in  the  Southwest  to  the  feeding 
grounds  in  the  North.  As  one  of  the  early  stock- 
men, now  President  of  the  United  States,  expressed 
it,  it  was  a  region  in  which  one  could  ride  for  days 
without  meeting  a  man  or  seeing  a  house.  Never- 
theless, the  entire  country  was  parcelled  out,  and 
the  boundaries  of  each  man's  territory  fairly  well 
understood. 

The  business  of  marketing  cattle  and  of  brand- 
ing the  increase  ceased  to  be  an  individual  matter. 
Associations  were  formed  which  divided  States 
into  round-up  districts  and  placed  the  recording 
of  brands,  the  branding  of  calves,  and  the  ship- 
ment of  grown  animals  under  a  sort  of  semi-public 
supervision.  The  State  live  stock  associations  had 
agents  in  all  of  the  great  shipping  centres,  who 
examined  the  brands  of  every  animal  shipped  out 
of  their  States  for  sale,  collected  the  money  for 
strays  and  remitted  it  to  the  rightful  owner. 
These  associations  also  jdetermined  the  time  when 
the  wandering  herds  on  ttie  plains  were  to  be 
rounded  up  in  the  spring. 

One  of  the  evils  of  the  range  live  stock  industry 
has  been  the  conflicts  between  the  owners  of  cattle 
and  the  owners  of  sheep.  Cattle  do  best  when 
turned  loose  to  wander  at  will  on  the  range. 
Sheep,  on  the  other  hand,  can  be  gathered  to- 
gether in  large  bands  and  their  movements  directed 
by  a  shepherd  or  herder;  hence  they  are  under 
better  control  than  cattle.  In  addition,  sheep  eat 

29 


IRRIGATION   INSTITUTIONS 

off  the  grass  more  closely  than  /cattle,  and  the 
odor  they  leave  on  the  grass  and  around  drinking 
places  is  distasteful  to  cattle.  Wherever  there  is 
a  contest  over  the  use  of  a  particular  district,  the 
sheepman  wins.  As  a  rule  the  growing  of  sheep 
is  attended  with  less  risk  and  with  greater  profit 
than  the  growing  of  cattle,  if  the  area  grazed  over 
and  the  injury  done  to  the  native  grasses  are  dis- 
regarded. 

On  account  of  these  facts  the  range  sheep  busi- 
ness has  largely  displaced  the  range  cattle  busi- 
ness in  Utah,  Idaho,  Wyoming,  Montana,  and  New 
Mexico.  When  the  contest  first  began,  the  senti- 
ment in  favor  of  enforcing  range  rights  was  much 
stronger  than  at  present,  and  sheepmen  hesitated 
about  encroaching  on  cattlemen's  territory.  When 
they  did,  the  man  who  first  reached  his  revolver 
usually  remained.  Although  in  theory  the  public 
lands  were  free  to  all  alike,  in  practice  men  marked 
out  dead  lines,  the  crossing  of  which  by  an  out- 
sider too  often  meant  a  resort  to  firearms.  The 
writer  once  travelled  on  a  stage-coach  which  car- 
ried thirty-five  Winchester  rifles  which  were  being 
rushed  into  action  in  one  of  these  contests. 

When  the  irrigator  appeared,  he  did  not  find  an 
unoccupied  country.  He  had  the  unwelcome  role 
of  helping  to  crowd  out  his  predecessor,  the  range 
stock  owner.  It  is  an  unfortunate  fact  that  there 
is  an  inevitable  conflict  between  the  migratory 
range  industries  and  the  increase  in  population 
which  goes  with  the  cultivation  of  the  irrigable 

30 


LAND    LAWS   OF  THE   ARID   REGION 

lands.  As  one  has  stated  it,  the  natural  tendency 
of  the  range  industry  is  to  create  a  country  which 
requires  trains  to  carry  out  the  live  stock,  but 
whose  people  can  travel  on  the  cow-catcher  of  the 
locomotive.  Irrigation  tends  to  reverse  this  pro- 
cess, and  the  two  cannot  harmoniously  develop 
together. 

The  absence  of  administration  or  control  over 
the  public  grazing  land  brought  irrigators  and 
range  stockmen  into  direct  conflict.  The  coming 
of  the  settler  worked  inevitable  hardship  to  the 
latter.  He  closed  up  the  water  fronts,  built  fences 
which  were  a  menace  to  range  herds  in  winter 
storms,  and  against  which  hundreds  of  cattle 
drifted  and  died.  He  not  only  absorbed  the  most 
valuable  land  by  his  filings,  but  turned  his  own 
herd  or  flock  loose  on  the  open  range  to  share  in 
its  use  with  the  original  occupant.  These  injuries 
were  aggravated  in  the  mind  of  range  stockmen 
by  their  belief  that  they  h&4  a  vested  right  in  the 
country.  A  homesteader,  ^ho  had  fenced  his 
quarter-section,  found  the  fence  cut  to  pieces.  To 
his  remonstrance  he  received  a  reply  that  the  man 
who  admitted  the  deed  had  followed  the  Indian 
into  that  country,  and  that  he  intended  to  use  the 
land  as  long  as  he  should  run  cattle  on  the  range. 

The  Nesters'  war  in  Texas  was  a  conflict  between 
settlers  and  range  stockmen,  and  there  are  few 
localities  where  friction  has  been  entirely  absent. 
In  addition  to  the  inevitable  injuries,  range  stock- 
men have  had  to  suffer  from  serious  and  unwar- 

31 


IRRIGATION    INSTITUTIONS 

ranted  abuses.  Many  cowboys  left  their  original 
occupation  to  become  poor  farmers  in  order  to 
insure  access  to  a  stream  and  to  make  use  of  the 
support  of  real  farmers  in  a  war  in  which  they  pro- 
ceeded to  engage  against  their  former  employers. 
Farming  was  a  pretence ;  their  real  occupation 
was  stealing  or  "  rustling "  from  range  stock- 
men. In  many  sections  this  thievery  became  so 
bold  as  to  practically  defy  law  and  order.  The 
"rustlers  "  justified  stealing  from  the  range  stock- 
men on  the  ground  that  they  were  only  sharing  in 
the  privilege  of  free  grazing  of  which  the  big  stock- 
men had  before  had  a  monopoly,  and  they  found 
protection  in  the  bitterness  felt  by  the  honest 
farmer.  The  "  rustler "  fanned  the  hostility  of 
the  irrigator  and  the  owner  of  range  herds,  and 
was  for  years  a  prolific  source  of  misunderstanding 
and  loss  to  both  interests.  The  range  stockmen 
too  often  retaliated  on  the  irrigator  for  the  injury 
which  his  coming  had  brought  by  driving  the  farm- 
er's milk  cows,  his  work  horses,  and  small  bunch 
of  cattle  or  sheep  away  from  the  home  range. 
In  some  instances  this  worked  no  more  serious 
damage  than  a  loss  of  time  hunting  for  them,  but 
where  the  irrigator  combined  farming  with  stock 
raising,  such  hostility  was  disastrous. 

There  are  many  sections  of  the  West  where  control 
of  the  range  is  the  most  vital  problem  which  con- 
fronts the  settlers,  and  it  is  the  one  which  they  first 
endeavor  to  solve.  Sometimes  they  succeed,  some- 
times there  is  continuous  friction  and  controversy, 

32 


LAND    LAWS   OF   THE   ARID   REGION 

and,  in  recent  years,  the  conflicts  thus  provoked 
have  been  serious,  and  their  ultimate  consequences 
often  disastrous.  Thousands  of  sheep  closely 
herded  together  not  only  eat  off  all  of  the  vegeta- 
tion, but  their  feet  trample  the  loose  soil,  expose 
the  roots  of  the  grass  to  the  burning  heat  of  the 
sun,  and  the  result  is  that  the  growth  of  grass 
is  permanently  impaired.  A  repetition  of  this  for 
two  or  three  seasons  often  results  in  its  complete 
destruction.  In  the  place  of  grass  there  appear 
weeds  and  cactus,  and  one-half  the  value  of  the 
irrigated  farm  has  been  destroyed.  Irrigated 
ranches  along  some  streams  have  been  abandoned 
because  farming  could  not  be  carried  on  at  a  profit 
without  combining  it  with  the  use  of  the  range, 
and  this  could  not  be  done  because  the  grass  has 
been  destroyed. 

In  one  way  and  another  there  has  been  great 
waste  and  loss  in  attempts  to  evade  the  administra- 
tion of  the  laws  which  govern  the  public  lands. 
A  final  settlement  of  this  jxjuestion  has  been  ren- 
dered difficult  by  the  opposition  of  every  one  who 
is  still  able  to  use  the  public  land  without  paying 
for  it,  toward  any  legislation  which  will  require 
him  to  make  such  payment.  Although  all  those 
who  have  leased  lands  have  learned  that  the 
security  it  gives  is  worth  far  more  than  the  cost  of 
rentals,  the  fact  remains  that  all  those  who  now 
have  free  use  object  to  any  sort  of  laws  which  will 
compel  them  to  either  rent  or  buy.  Instead  of 
a  willingness  to  pay  for  what  they  use,  they  have 
D  33 


IRRIGATION   INSTITUTIONS 

endeavored  to  secure,  indirectly,  a  continuation  of 
the  free  use  of  the  public  lands  by  many  ingen- 
ious makeshifts  of  State  legislation.  Nevada  has 
passed  a  law  which  imposes  a  prohibitive  tax  on 
flocks  pastured  on  the  open  range  when  owned  by 
others  than  freeholders  in  the  State.  Idaho  has  a 
similar  law.  Other  States  have  passed  quarantine 
laws,  the  sole  purpose  of  which  was  to  prevent 
flocks  of  sheep  being  driven  across  their  borders 
from  other  States.  Bills  to  prohibit  the  grazing 
of  range  flocks  within  three  miles  of  a  settler's 
fences  have  been  introduced  in  more  than  one 
State  legislature.  Many  settlers,  who  would 
gladly  lease,  fear  that  if  a  leasing  law  is  put  in 
force,  it  will  be  so  perverted  that  all  the  land 
bordering  their  ranches  will  be  absorbed  by  the 
owners  of  large  flocks  and  herds,  and  that  the  evils 
they  now  suffer  will  only  be  aggravated. 

The  attitude  of  the  range  stockman  has  been 
largely  determined  by  his  ingrained  feeling  that  he 
is  entitled  to  the  free  use  of  this  country,  and  that 
anything  which  compels  him  to  pay  for  its  use  is 
an  interference  with  his  vested  rights.  In  his  ef- 
forts to  maintain  this  privilege,  he  has  not  always 
been  scrupulous  as  to  methods.  Press  bureaus 
have  been  maintained  for  the  purpose  of  denounc- 
ing every  advocate  of  leasing  and  misrepresenting 
the  reasons  therefor. 

Competition  has,  however,  every  year  become 
more  severe,  and  this  has  forced  men  to  violate 
the  law  and  to  commit  acts  which  they  heartily 

34 


LAND   LAWS   OF  THE   ARID   REGION 

disliked.  Millions  of  acres  of  land  have  been 
illegally  fenced.  This  has  been  winked  at  be- 
cause the  necessity  for  it  has  been  realized.  Men 
have  paid  extravagantly  high  prices  for  land  scrip 
to  file  on  the  lands  bordering  streams  and  water  \ 
holes  in  order  to  control  the  water-supply.  Only 
those  who  have  lived  in  the  range  country  and 
have  seen  the  long  stretches  of  ashy,  dusty  plains, 
over  which  the  air  waves  and  trembles  with  heat 
under  a  sun  which  scorches  the  skin  and  dazzles 
the  eyes,  can  understand  the  meaning  of  water. 
Whoever  controls  it  controls  the  grazing  country, 
because  stock  need  water  as  well  as  grass. 

The  chief  agencies  for  securing  title  to  land 
along  water  fronts  have  been  the  Desert  and 
Homestead  land  laws.  The  Desert  Act  does  not"Y: 

•V. 

require  residence;  the  party  filing  might  live  in  *\ 
New  York,  Boston,  or  Chicago.  Six  hundred  and 
forty  acres  of  land  stretched  along  a  stream  in 
forty-acre  tracts  would  control  four  miles  of  water 
front.  At  the  time  when  this  law  was  most  used, 
men  found  little  difficulty  in  complying  with  the 
regulations  governing  proof.  In  the  ten  years 
from  1876  to  1886  millions  of  dollars  were  spent  in 
building  ditches  to  acquire  title  to  the  lands  under 
this  act. 

The  collapse  came  in  the  winter  of  1886,  which 
is  historic  for  the  disasters  wrought  in  the  range 
cattle  business.  A  dry  summer  was  followed  by  a 
bitter  winter.  Overstocking  of  ranges  had  de- 
stroyed the  grass,  and  sheep  and  cattle  perished, 

35 


IRRIGATION    INSTITUTIONS 

by  hundreds  of  thousands,  from  cold  and  starva 
tion.  The  blow  fell  with  crushing  weight.  For- 
tunes which  had  been  made  almost  in  a  day  were 
as  quickly  lost.  The  banks  of  many  western 
cities  closed  their  doors.  Colonies  of  university 
graduates  and  members  of  wealthy  families  from 
eastern  cities  and  from  Europe,  attracted  by  the 
novelty  and  charm  of  Western  life,  melted  away. 
The  former  kings  of  the  range  had  to  retire,  and 
the  foundation  industry  of  nearly  one-fourth  of  the 
United  States  underwent  a  reorganization.  As  a 
part  of  this  reorganization,  ditch  building  ceased 
to  be  a  pretext  for  land-grabbing,  and  the  growth 
of  actual  irrigation  became  legitimate  and  honest. 
Stockmen  began  to  use  ditches  already  built  to 
irrigate  fields  for  winter  feed,  and  cultivators  of 
the  soil  found  a  hearty  welcome  and  larger  oppor- 
tunities than  before. 

In  recent  years  the  high  price  of  live  stock  has 
again  intensified  the  competition  over  the  open 
range.  Men  who  need  to  control  the  land  they 
pasture  are  unable  to  either  buy  or  lease  it  directly. 
Evading  the  law  is  expensive  but  not  impossible. 
Recently  soldiers'  widows  have  been  gathered 
together  in  the  East  and  shipped  in  car-load  lots 
to  Western  land  offices  to  make  homestead  filings 
for  stockmen.  Seventy-two  such  filings  were  made 
in  one  day  at  Valentine,  Nebraska,  and  thirty  at 
Alliance,  Nebraska.  The  law  most  used  is  the 
Homestead  Act.  Any  one  on  whom  the  sanctity 
of  an  oath  rests  lightly  can  materially  increase 

36 


LAND   LAWS  OF  THE   ARID   REGION 

his  bank  account  by  using  his  homestead  rights  / 
for  some  range  stockman.  School-teachers,  sheep 
herders,  cowboys,  workmen  on  railways,  men  in  all 
walks  of  life,  have  permitted  their  names  to  be 
utilized  for  this  purpose.  The  method  is  simple 
and  easy.  It  involves  the  building  of  a  claim 
cabin,  the  sleeping  on  the  claim  two  or  three  nights 
during  a  period  of  fourteen  months,  and  the  com- 
mutation of  the  remainder  of  the  residence  period 
by  the  payment  of  #1.25  per  acre.  The  perjury 
incidentally  involved  in  this  does  not  count.  It  is 
too  common  to  be  noticed. 

The  rapidity  with  which  the  land  along  streams 
is  passing  into  comparatively  few  hands  under  the 
operation  of  this  act  is  astounding.  The  report  of 
the  commissioner  of  the  land  office  for  1901  shows 
that  the  total  homestead  entries  of  all  classes 
aggregated  111,390  and  embraced  15,455,057  acres. 
This  is  9488  more  homestead  entries  than  were 
made  in  any  previous  year  since  the  passage  of 
the  Homestead  Act  nearly  forty  years  ago.  It 
is  nearly  one-fourth  as  many  final  entries  as  were 
made  in  the  entire  nineteen  years  following  the 
passage  of  the  act. 

This  activity  does  not  indicate  the  use  but  the 
abuse  of  the  Homestead  Law.     The  lands  are  not  » 
taken  up  to  create  homes,  but  to  control  the  public  \. 
range.     The  areas  which  are  being   absorbed  lie  i 
along  the  streams.     They  are  the  best  of  the  re- 
maining public  lands.      The   rapidity  with  which 
they  are  passing  from  public  into  private  control  is 

37 


IRRIGATION   INSTITUTIONS 

lessening  the  opportunities  for  stockmen  and  irri- 
gators,  is  placing  an  obstacle  in  the  way  of  public 
irrigation,  and  is  creating  monopolies  of  the  graz- 
ing land  which  should  be  prevented. 

The  administration  of  the  grazing  lands  has 
been  long  delayed,  but  the  march  of  settlement 
will  sooner  or  later  force  Congress  to  take  action. 
If  the  value  of  the  grazing  lands  is  to  be  preserved, 
there  must  be  some  sort  of  administration  which 
will  put  an  end  to  the  destructive  overstocking  and 
make  it  to  the  interest  of  individuals  to  protect 
and  improve  the  areas  they  use.  Whatever  shape 
legislation  takes,  it  should  provide  for  the  union 
of  the  irrigable  and  grazing  lands.  The  irrigated 
homestead  should  be  reduced  in  size  in  order  to 
provide  homes  for  the  largest  number  of  people, 
but  its  reduction  should  be  offset  by  giving  to 
the  settler  the  right  to  lease  a  larger,  but  limited, 
area  of  grazing  land.  The  chief  industry  in  much 
of  the  West  will  always  be  the  growing  of  live 
stock.  Uniting  the  irrigable  and  grazing  lands 
will  divide  the  latter  into  a  multitude  of  small  hold- 
ings, increase  the  number  of  people  benefited 
and  make  the  growing  of  live  stock  attractive  to 
many  who  are  now  repelled  by  the  risks  and  con- 
troversies of  the  open  range.  It  will  encourage 
the  introduction  of  improved  breeds  of  live  stock, 
which  cannot  now  be  placed  on  the  open  range 
because  of  lack  of  protection.  Stock  will  be  better 
fed  and  better  cared  for  in  winter.  A  humane 
industry  will  replace  the  gamble  with  death  by  cold 

38 


LAND   LAWS   OF  THE  ARID   REGION 

and  starvation  which  has  long  been  a  reproach  to 
stock  growing  in  many  parts  of  the  West.  It  will 
enlist  self-interest  in  improving  the  native  grasses 
where  every  influence  now  tends  toward  their 
destruction. 

The  grazing  lands  should  be  leased,  not  sold, 
because  the  limit  of  irrigation  has  not  been  fixed ; 
nor  are  the  possibilities  of  these  lands  sufficiently 
known  for  the  limits  of  the  homestead  to  be  marked 
out.  Care  should  be  taken  that  these  leases  do 
not  interfere  with  actual  settlement.  This  can  be 
done  by  having  the  lands  classified  by  the  general 
government,  and  the  grazing  and  irrigable  areas 
segregated,  or  by  having  every  lease  subject  to 
entry  by  the  actual  cultivators  under  the  Home- 
stead Law.  The  increase  of  leasing  would  bring 
about  more  settled  conditions,  and  give  to  the 
irrigator  a  secure  tenure  m^the  use  of  the  lands 
he  needs.  It  can  also  b6  rriade  a  most  effective 
instrument  in  promoting  the  construction  of  irri- 
gation works.  If  it  is  adopted,  it  will  inevitably 
result  in  returning  to  the  government  a  large  sum 
of  money.  At  a  rent  of  one  cent  an  acre,  the 
annual  income  will  be  several  millions  of  dollars. 
The  experience  of  the  arid  States  in  leasing  the 
lands  donated  to  them  at  the  time  of  their  admis- 
sion affords  ample  proof  of  this.  Colorado  leases 
over  3,500,000  acres  at  an  average  rental  of  eight 
cents  an  acre.  Montana  leases  nearly  1,000,000 
acres  of  State  lands  at  a  rental  of  over  eleven 
cents  an  acre.  Wyoming  leases  nearly  2,000,000 


IRRIGATION   INSTITUTIONS 

acres  at  an  average  of  over  four  cents  an  acre. 
The  rentals  in  Utah  average  nearly  six  cents  an 
acre.  The  Union  and  Northern  Pacific  railways 
lease  nearly  2,000,000  acres  at  rentals  varying 
from  one  to  seven  cents  an  acre. 

The  leasing  bill  introduced  in  the  fifty-seventh 
Congress  by  Hon.  J.  F.  Lacey,  the  chairman  of 
the  committee  on  public  lands,1  embodies  all  the 
essential  features  of  a  successful  leasing  law.  It 
is  believed  that  the  majority  of  irrigators  would 
favor  legislation  of  this  character.  Their  opposi- 
tion is  due  to  a  fear  that  the  grazing  lands  would 
be  absorbed  in  large  leases.  The  bill  referred  to 
would  prevent  this. 

1  H.  R.  No.  14,108,  57th  Congress,  First  Session. 


40 


CHAPTER   III 

THE  BEGINNINGS  OF  IRRIGATION 
History 

IRRIGATION  on  the  American  continent  is  older 
than  historical  records.  In  various  parts  of  the 
Southwest,  notably  in  the  Salt  River  Valley  of 
Arizona,  in  northern  New  Mexico,  and  in  south- 
western Colorado,  are  well-defined  remains  of  irri- 
gation works  which  have  outlived  by  many  centuries 
the  civilization  to  which  they  belonged.  Even  mod- 
ern irrigation  is  comparatively  old.  It  began 
seventy  years  before  the  English  colony  landed  at 
Jamestown,  when  Spanish  missionaries  gained  an 
enduring  foothold  in  the  valley  .of  the  Rio  Grande. 
They  built  churches  which  still  stand  and  planted 
gardens  which  still  flourish  ;  but,  in  watering  these 
gardens,  they  taught  nothing  new  to  the  native  in- 
habitants. The  Spanish  explorers,  who  rode  up  the 
valley  of  this  river  in  the  first  half  of  the  sixteenth 
century,  found  Pueblo  Indians  irrigating  the  thirsty 
soil  as  their  forefathers  had  done  for  centuries 
before  them,  and  as  their  descendants  are  still 
doing. 

When,  in  this  valley  and  along  tributary  streams, 
and  in  other  places  in  the  desert  wastes  of  the 
Southwest,  Spanish  settlements  sprang  up,  they 


IRRIGATION    INSTITUTIONS 

maintained  themselves  by  means  of  these  life- 
giving  waters.  The  ditches  of  Las  Cruces,  New 
Mexico,  have  an  unbroken  record  of  three  hundred 
years  of  service,  the  history  of  which  is  written  in 
the  banks  of  the  canals  by  the  sediment  with  which 
the  water  of  the  Rio  Grande  is  laden.  Year  after 
year  this  has  been  deposited  on  the  sides  and 
bottoms  of  these  ditches,  until  from  being  channels 
cut  out  below  the  surface,  they  are  raised  two  or 
three  feet  above.  It  is  here  that  one  can  yet  find 
agriculture  almost  as  primitive  as  that  of  the  days 
of  Pharaoh,  where  grain  is  reaped  with  the  sickle 
and  thrashed  by  the  trampling  of  goats. 

For  the  beginnings  of  Anglo-Saxon  irrigation  in 
this  country,  we  must  go  to  the  Salt  Lake  Valley 
of  Utah,  where,  in  July,  1847,  tne  Mormon  pio- 
neers first  turned  the  clear  waters  of  City  Creek 
upon  the  sun-baked  and  alkaline  soil. 

Utah  is  interesting  not  only  because  it  is  the 
cradle  of  our  modern  irrigation  industry,  but  even 
more  so  as  showing  how  important  are  organiza- 
tion and  public  control  in  the  diversion  and  use  of 
rivers.  Throughout  their  pioneer  period  the  settlers 
of  Utah  were  under  the  direction  of  exceptionally 
able  and  resourceful  leaders,  who  were  aided  by 
the  fact  that  their  followers  were  knit  together  by 
a  dominating  religious  impulse.  These  leaders 
had  the  wisdom  to  adapt  their  methods  of  settle- 
ment and  shape  their  institutions  so  as  to  conform 
to  the  peculiar  conditions  by  which  they  were  sur- 
rounded. They  found  that  irrigation  was  necessary 

42 


THE   BEGINNINGS   OF   IRRIGATION 

to  existence  in  the  home  they  had  chosen,  and  that 
the  irrigating  canal  must  therefore  be  the  basis  of 
their  industrial  organization. 

That  the  great  material  results  which  quickly  fol- 
lowed their  settlement  could  have  been  realized  with- 
out the  cohesion  which  came  from  an  association 
dominated  by  religious  discipline  and  controlled  by 
the  superior  intelligence  of  the  head  of  the  Mormon 
church,  is  doubtful ;  but  that  this  success  was  aided 
by  the  fact  that  they  brought  with  them  institutions 
suited  to  their  environment  is  beyond  dispute.  Co- 
operation had  been  a  dominant  principle  of  their 
organization  in  Illinois  and  Missouri,  but  it  took 
on  new  power  when  they  migrated  to  a  land  with- 
out capital,  where  it  was  beyond  the  power  of  the 
individual  to  turn  the  mountain  torrent  from  its 
course  and  spread  it  upon  his  lands.  Only  the 
labor  of  many  individuals,  working  under  organiza- 
tion and  discipline,  could  build  the  necessary  canals 
or  distribute  the  waters  carried  in  them.  A  small  I 
farm  unit  was  chosen,  not  because  men  were  less  | 
greedy  for  land  than  in  all  other  new  countries, 
but  because  it  was  quickly  seen  that  the  extent  of 
the  water-supply  was  the  measure  of  production. 
Diversified  farming,  which  is  one  of  the  leading 
causes  of  the  remarkably  even  prosperity  of  Mor- 
mon agriculture,  was  resorted  to  because  the  terri- 
tory being  settled  was  so  far  removed  from  other 
settlements  as  to  make  it  absolutely  necessary  that>^» 
it  be  self-sustaining.  The  small  farm  unit  made 
near  neighbors,  and  this  advantage  was  still  more 

43 


IRRIGATION   INSTITUTIONS 

enhanced  by  assembling  the   farmers'   homes   in 
convenient  village  centres. 

The  discovery  of  gold  in  California  created  the 
Overland  Trail,  which  wound  its  tortuous  course 
across  the  hitherto  trackless  wastes  of  the  arid 
domain.  Its  stations  were  usually  along  the  banks 
of  streams.  In  the  neighborhood  of  these  stations 
settlers  established  themselves,  and  by  means  of 
simple  furrows  turned  water  upon  the  bottom  land. 
Outside  of  Utah  this  was  the  extent  of  irrigation 
throughout  the  vast  region  from  the  Missouri 
River  to  the  Sierras  before  the  founding  of  the 
Union  Colony  at  Greeley,  Colorado,  —  the  second 
historic  step  in  establishing  Anglo-Saxon  irrigation 
in  this  country,  —  a  step  which  furnishes  a  different 
standpoint  for  study  from  that  of  the  Mormon 
settlement  in  Salt  Lake  Valley. 

As  Utah  is  the  result  of  a  religious  emigration, 
so  Greeley  is  the  creation  of  the  New  England 
town  meeting  transplanted  to  the  far  West.  Its 
founding  marked  the  beginning  of  a  new  and  dif- 
ferent industrial  development  in  Colorado.  Before 
the  colony  became  noted,  the  wealth  of  the  mines 
or  the  migratory  and  adventurous  life  of  the  range 
live-stock  men  had  been  the  chief  magnets  in  at- 
tracting settlement.  Greeley  represented  an  effort 
of  home-making  people  to  enjoy  both  landed  inde- 
pendence and  social  and  intellectual  privileges 
equal  to  those  of  the  towns  and  cities  they  had 
left.  Among  its  first  buildings  was  Colony  Hall, 
and  among  its  first  organizations  the  Lyceum,  in 

44 


THE   BEGINNINGS   OF   IRRIGATION 

which  all  the  affairs  of  the  community  were  de- 
bated with  a  fervor  and  fearlessness  quite  worthy 
of  Horace  Greeley's  following. 

The  best  methods,  both  of  irrigation  and  culti- 
vation, were  sought  out  through  numberless  experi- 
ments, until  Greeley  and  its  potatoes  grew  famous 
together.  The  homes  and  civic  institutions  of  the 
colony  became  the  pride  of  the  State,  and  the  hard- 
won  success  of  the  community  inspired  numerous 
similar  undertakings  and  furnished  an  impulse 
which  resulted  in  the  reclamation  and  settlement  of 
northern  Colorado.  Boulder,  Longmont,  Loveland, 
and  Fort  Collins  were  the  outgrowth  of  this  success, 
and  each  adopted  many  of  the  ideas  and  tendencies 
of  the  parent  colony. 

Twenty  years  subsequently  to  the  beginning  in 
Utah,  and  contemporaneously  with  the  settlement 
of  Colorado,  similar  influenced  began  to  make 
themselves  felt  in  California,  especially  in  its 
southern  part.  Colonies  at  Anaheim  and  River- 
side were  cooperative  in  their  inception,  and  have 
since  remained  such,  and  their  example  has  been 
a  potent  factor  for  good  ;  but  it  was  not  powerful 
enough  to  control  the  spirit  of  speculation  which 
has  pervaded  the  industrial  life  of  California  and 
which  fastened  itself  on  irrigation  as  it  had  done 
on  mining.  Irrigation  soon  became  corporate  and 
speculative.  The  watering  of  stocks  and  bonds 
shared  profits  —  or  loss! — with  the  watering  of 
land  in  too  many  of  the  early  enterprises. 

In  Wyoming,  Montana,  Idaho,  and  Nevada, 
45 


IRRIGATION   INSTITUTIONS 

grazing  lands,  rather  than  irrigable  lands,  have 
been  the  leading  factor  in  local  development. 
The  need  of  a  winter  feed  supply  for  range 
live  stock  has  led  to  the  construction  of  ditches 
remote  from  local  markets,  and  has  limited  irri- 
gated agriculture  over  large  areas  to  the  pro- 
duction of  forage  crops.  And  because  of  this 
all  statistics  of  the  value  of  irrigated  lands  and 
water  rights  in  these  States  are  misleading  as 
an  index  of  their  future  possibilities.  This  does 
not  mean  that  land  and  water  will  ever  be  as 
valuable  here  as  in  some  sections  of  California, 
Arizona,  and  New  Mexico ;  but  with  increased 
railway  facilities,  and  changes  in  agricultural 
methods,  there  will  be  more  economical  and 
skilful  use  of  water.  In  these  States,  more 
than  in  any  others,  lie  the  possibilities  of  the 
future,  because  here  rise  the  great  rivers  of  the 
arid  region,  the  Snake,  the  Missouri,  and  the  Colo- 
rado, which,  with  their  tributaries,  control  the  indus- 
trial future  of  a  region  larger  than  most  European 
countries. 

With  this  outline  of  the  growth  of  western  irri- 
gation, let  us  next  consider  what  has  been  accom- 
plished. 

We  are  met  at  the  outset  by  an  entire  absence 
of  definite  information.  We  do  not  know  how 
many  irrigation  works  have  been  built.  In  many 
States  no  provision  is  made  for  their  record.  In 
only  two  States  is  the  record  even  approximately 
accurate  or  complete.  There  may  be  75,000  ditches, 

46 


THE   BEGINNINGS   OF   IRRIGATION 

or  there  may  be  fewer  or  more ;  but  either  as  to 
their  number  or  the  acreage  reclaimed,  we  are 
limited  to  estimates. 

It  is  exceedingly  difficult  to  determine  the  cost 
of  ditches  and  canals.  Some  companies  hesitate 
to  disclose  the  cost  of  their  works ;  some  decline 
to  do  so,  and  others  do  not  know.  The  numerous 
items  of  expense  involved  in  the  construction  and 
operation  of  a  large  irrigating  canal  during  the  first 
ten  years  of  its  life  cannot  always  be  classified. 
These  works  are  not  built  with  the  same  prelimi- 
nary care  and  expense  as  the  irrigating  canals  of 
Europe.  There  is  usually  a  rush  to  get  water  on 
a  portion  of  the  land  to  be  irrigated.  It  is  not 
necessary  that  the  ditch  should  be  completed  to 
its  utmost  capacity.  Top  planks  may  be  left  off 
flumes;  waste  ways  may  be  left  for  construction 
in  future  years ;  headgates  may  be  of  temporary 
construction,  to  be  made  permanent  later.  Often 
construction  expense  runs  into  Operating  expense, 
until  it  is  hard  to  separate  the  two  items. 

This,  however,  is  known :  That  the  highest- 
priced  and  most  productive  farm  lands  on  this 
continent  are  in  this  arid  region ;  that  the  largest 
yield  of  nearly  every  staple  crop  has  been  obtained 
by  the  aid  of  irrigation  ;  that  not  only  has  the  growth 
of  agriculture  furnished  a  market  for  the  factories 
of  the  East,  and  supported  the  railroads  which  unite 
the  two  extremes  of  the  country,  but  it  is  the  chief 
resource  of  many  arid  States.  Colorado  leads  the 
Union  in  her  output  of  precious  metals,  but  the 

47 


IRRIGATION    INSTITUTIONS 

product  of  her  farms  equals  in  value  that  of  her 
mines.  In  California  many  of  the  cities  are  as 
truly  the  products  of  irrigation  as  the  orchards 
which  surround  them.  This  can  be  said  of  Los 
Angeles,  Riverside,  Redlands,  Pasadena,  and 
Fresno.  The  beginnings  of  Utah  were  wholly 
agricultural,  and  without  the  irrigated  farms  the 
cities  of  that  interior  commonwealth  would  as  yet 
be  only  dreams.  In  less  striking  degree  the  same 
condition  prevails  in  Idaho,  Wyoming,  Montana, 
Nevada,  New  Mexico,  and  Arizona. 

Methods 

The  first  irrigation  works  in  the  West  were  of 
the  most  primitive  character.  A  simple  furrow 
turned  part  of  a  creek  or  river  upon  the  low-lying 
bottom-land  adjacent.  In  few  cases  did  the  earlier 
ditch  builders  have  to  make  a  cut  of  more  than 
five  feet  in  order  to  place  the  bottom  of  their  ditch 
level  with  the  bottom  of  the  stream.  For  five 
hundred  miles  along  the  eastern  base  of  the  Rockies 
the  plain  which  borders  it  slopes  away  from  it  with 
a  fall  varying  from  ten  to  one  hundred  feet  to  the 
mile.  The  mountain  torrents,  as  they  leave  their 
canyon  walls,  have  an  equally  rapid  fall.  Ditches 
with  a  fall  of  three  feet  to  the  mile  could  soon 
reach  the  surface  of  the  land  to  be  irrigated. 
There  was  seldom  need  of  building  dams,  usually 
a  temporary  structure  made  of  bags  of  sand  or  a 
combination  of  stones  and  brush,  requiring  only  a 

48 


THE   BEGINNINGS   OF   IRRIGATION 

few  hours,  or  at  most  a  few  days  to  construct, 
would  serve.  Headgates  were  an  exception  rather 
than  a  rule.  A  few  shovels  of  earth  provided  an 
embankment  to  keep  out  the  water  when  not 
needed,  and  a  few  strokes  of  the  same  shovel 
opened  a  way  for  its  passage  when  irrigation 
began.  Engineering  advice  was  seldom  sought. 
No  attention  was  paid  to  alignment.  Ditches 
followed  the  contour  of  the  surface,  and  some  of 
them  were  so  crooked  as  to  be  wasteful  of  both 
land  and  water.  The  needed  slope  was  given  to 
the  ditch  in  some  cases  by  beginning  at  the  head 
and  letting  the  water  follow  the  excavation,  in 
others  by  filling  a  pan  with  water  and  sighting 
across  its  opposite  edges.  By  many  ingenious 
home-made  designs  the  individual  irrigator,  working 
alone,  was  able  to  water  his  garden  or  little  farm. 
In  time  irrigators  became  very  expert  in  determin- 
ing where  water  would  or  would  not  run,  and  could 
locate  their  ditches  or  laterals  with  surprising  suc- 
cess without  the  aid  of  any  instruments  whatever. 
Returns  from  irrigation  were  large.  Owners  of 
gardens  along  the  Overland  Trail  sold  their  cab- 
bages for  $i  a  head  and  their  potatoes  for  50  cents 
a  pound.  Flour  sold  in  Alder  Gulch,  Montana, 
for  $100  per  sack  and  in  many  mining  camps  hay 
brought  $100  a  ton.  With  such  returns  following 
irrigation,  ditches  were  built  wherever  men  settled, 
in  the  vicinity  of  mining  camps,  around  the  stage 
stations  of  the  Santa  Fe"  and  Overland  trails,  in  the 
Mormon  colonies  of  Utah,  around  transplanted 
*  49 


IRRIGATION   INSTITUTIONS 

New  England  at  Greeley,  Colorado,  or  on  a  sheep 
or  cattle  ranch  in  Montana. 

In  time  larger  and  costlier  ditches  were  under- 
taken in  order  to  reach  the  broader  and  better 
lands  away  from  the  margins  of  streams.  Irriga- 
tion grew  as  a  tree  grows,  by  putting  out  new 
branches  in  some  cases  and  extending  older  ones 
in  others.  The  later  settlers  would  either  seek  out 
new  locations  or  enlarge  and  extend  the  ditches 
already  built.  In  this  way  a  single  furrow,  built 
to  irrigate  ten  acres,  came  in  time  to  be  a  broad 
and  deep  canal  watering  thousands  of  acres.  The 
Larimer  and  Weld  Canal  was  built  in  1864  to 
water  800  acres.  It  was  enlarged  in  the  seven- 
ties to  water  40,000  acres.  While  once  a  single 
owner  controlled  this  ditch,  it  came  in  time  to 
be  a  partnership  affair  in  which  several  hundred 
farmers  had  an  interest.  In  other  cases,  men 
would  at  the  outset  associate  themselves  together 
to  build  waterways  too  expensive  and  costly  for 
one  individual  to  control.  It  was  soon  apparent 
that  overcoming  physical  obstacles  is  only  one  of 
the  problems  of  irrigation.  The  needed  training 
in  cooperation  and  association  was  conspicuously 
lacking  in  the  early  irrigators.  They  not  only  did 
not  know  how  to  work  harmoniously  together,  but 
they  had  inherited  prejudices  against  submitting 
to  the  restraint  and  control  needed  to  make  asso- 
ciated effort  a  success.  Many  partnership  ditches 
were  begun  without  any  written  agreement  or  well- 
defined  understanding  as  to  what  was  to  be  each 

5° 


THE   BEGINNINGS   OF   IRRIGATION 

man's  share  in  the  project  when  completed,  how 
much  work  he  was  to  do,  or  how  much  water  each 
was  to  receive. 

The  first  districts  irrigated  were  oases  in  the 
desert,  separated  from  each  other  by  wide  areas 
inhabited  chiefly  by  the  coyote  and  Indian.  Ditch 
builders  along  the  Poudre  River  in  Colorado  knew 
nothing  of  what  irrigators  were  doing  in  Utah, 
while  those  of  Utah  were  equally  ignorant  of  what 
was  being  done  in  California.  There  were  no 
laws  to  control  the  organization  or  management  of 
cooperative  ditch  companies,  no  means  by  which 
the  people  who  entered  into  them  could  secure 
control  of  the  land  that  was  to  be  watered  out- 
side of  what  they  filed  on,  and  in  the  absence 
of  any  able  outside  direction  such  as  was  had  in 
Utah  the  controversies  which  arose  took  many 
forms.  Enthusiasm  or  the  press  of  need  would 
suffice  to  build  partnership  ditches,  but  friction 
would  disrupt  their  subsequent  operation.  Human 
selfishness  would  then  assert  itself.  The  man 
whose  land  was  near  the  head  of  the  ditch  did 
not  need  to  keep  it  in  repair;  so  long  as  water 
for  all  others  had  to  run  past  his  lateral,  the  peo- 
ple below  him  would  have  to  attend  to  this  or  do 
without.  The  irrigator  having  this  fortunate  loca- 
tion showed  equal  ingenuity  in  manipulating  his 
headgate  so  as  to  take  more  than  his  share  of  the 
water,  while  the  unfortunate  irrigator  at  the  lower , 
end  of  the  ditch  found  himself  doing  more  work 
and  getting  less  for  it  than  the  other  members  of 


IRRIGATION    INSTITUTIONS 

the  partnership.  Until  farmers  learned  that  they 
must  place  the  control  of  their  ditch  in  the  hands 
of  one  individual,  there  was  either  murder  or  sui- 
cide in  the  heart  of  every  member  of  the  partner- 
ship. 

The  experience  of  the  Greeley  Colony  illustrated 
the  difficulties  which  beset  cooperative  ditch  enter- 
prises, and  explains  why  corporate  works  came  as 
a  natural  and  inevitable  evolution  in  our  irrigation 
development.  The  founders  of  the  colony  were 
men  of  national  reputation,  its  rank  and  file  were 
above  the  average  in  intelligence,  and  they  emi- 
grated to  a  new  country  to  secure  better  social 
conditions  rather  than  financial  gain.  Many  came 
from  the  farms  of  New  England  and  the  North- 
west, and  consequently  knew  how  to  work  and  how 
to  economize.  The  possession  of  a  certain  amount 
of  money  was  one  of  the  conditions  of  membership 
in  the  colony,  thus  insuring  from  the  outset  at 
least  a  portion  of  the  funds  that  would  be  necessary 
in  actual  settlement.  One  of  the  most  favored 
spots  in  the  West  was  chosen  for  the  enterprise. 
The  soil  was  fertile  and  the  water-supply  ample 
for  the  needs  of  agriculture.  The  canal  had  no 
serious  engineering  difficulties,  and  the  crops 
which  the  colonist  grew  were  those  they  had 
previously  grown  in  the  East.  Nevertheless,  the 
ditches  nearly  wrecked  the  colony. 

In  the  first  place,  no  one  knew  how  much  water 
was  needed  to  irrigate  an  acre  of  land,  nor  the 
number  or  size  of  the  ditches  necessary  to  reclaim 

52 


THE   BEGINNINGS   OF   IRRIGATION 

the  area  proposed  to  be  settled.  Four  ditches 
were  projected  to  irrigate  about  120,000  acres. 
The  estimated  cost  of  these  four  ditches  was 
$20,000,  and  this  amount  was  accordingly  set  aside 
for  the  purpose.  But  the  first  of  these  ditches 
cost  $30,000,  and  instead  of  watering  120,000 
acres,  it  failed  to  water  the  2000  acres  planted 
the  first  year  because  it  was  too  small.  The 
colonists  were  in  a  quandary.  The  ditch  had  to 
be  enlarged,  yet  the  funds  set  aside  for  ditch 
building  were  exhausted.  Having  lost  a  year's 
time  through  the  failure  of  the  first  crop,  the 
farmers  were  in  no  mood  to  provide  additional 
funds;  and  if  the  ditch  project,  which  thus  far 
had  been  looked  after  by  those  of  the  colony  to 
be  especially  benefited,  had  not  been  aided  by  the 
central  organization,  it  would  have  found  an  early 
and  inglorious  end.  Some  of  the  colony  lands 
were  sold  and  money  finally  raised  from  the 
farmers,  so  that  two  enlargements  of  the  canal, 
one  costing  over  $42,000,  were  carried  through. 
Later,  additional  funds  were  raised,  and  over 
$112,000  was  expended  before  the  ditch  was  fin- 
ished. Even  then  the  ditch  irrigated  only  about 
32,000  acres,  or  about  one-fourth  the  area  included 
in  the  original  estimate.  The  other  three  canals 
of  the  original  scheme  have  since  been  built  by 
other  parties,  at  a  total  cost  for  the  four  of  $400,000, 
or  twenty  times  the  first  estimate. 

The  difficulties  that  were  experienced  in  hold- 
ing together  the  farmers  under  the  Greeley  Canal 

S3 


IRRIGATION   INSTITUTIONS 

would  have  been  fatal  to  a  project  of  similar  mag- 
nitude lacking  the  support  of  a  central  organization 
like  the  Union  Colony.  The  reasons  for  this  are 
not  hard  to  find.  There  are  abundant  oppor- 
tunities for  mistakes  in  estimates  of  cost.  These 
estimates  are  nearly  always  too  low,  and  when 
much  too  low  almost  inevitably  wreck  an  enter- 
prise. Again,  the  hardships  encountered  during 
the  first  years  of  settlement  and  before  water 
can  be  turned  upon  the  land  are  more  than  most 
men  will  endure.  Unless  water  can  be  supplied  to 
grow  a  garden  the  second  year  after  settlement 
begins,  there  is  certain  to  be  an  exodus. 

The  great  danger  of  partnership  ditches  is  the 
failure  to  realize  at  the  outset  the  need  of  adequate 
organization.  There  exists  among  farmers  a 
prejudice  against  corporation  methods,  and  in  their 
efforts  to  avoid  following  them,  disagreements 
arise  usually  over  the  distribution  of  water  or  the 
expense  of  management. 

In  the  operation  of  corporation  ditches  an  annual 
charge  is  levied  for  the  water  furnished,  based 
either  on  the  acreage  irrigated  or  the  volume  of 
water  to  be  delivered.  From  this  the  operating 
expenses  are  paid,  and  dividends  declared  upon 
the  capital  stock.  This  is  also  the  plan  pursued 
by  the  most  successful  partnership  ditches,  but 
with  many  no  charge  is  made  for  water  furnished. 
Instead,  an  assessment  is  levied  upon  the  shares 
of  stock  each  season  to  meet  operating  expenses, 
while  the  dividends  are  represented  by  the  water 

54 


THE   BEGINNINGS  OF  IRRIGATION 

furnished.  It  often  happens,  however,  that  stock- 
holders either  own  no  land  or  own  land  which  is 
not  being  irrigated,  and  are  called  upon  to  pay 
assessments  from  which  they  derive  no  benefits. 
On  the  other  hand,  their  assessments  lessen  the 
cost  and  increase  the  water-supply  of  the  actual 
irrigators.  This  situation  is  not  satisfactory  to  the 
holder  of  unused  shares.  His  only  source  of  relief 
is  to  rent  his  shares  to  some  needy  irrigator.  Then 
the  lack  of  a  definite  understanding  over  this  mat- 
ter often  results  in  a  lawsuit. 

The  irrigation  works  of  Utah  are  usually 
referred  to  as  being  partnership  ditches,  built  by 
the  unaided  efforts  of  the  settlers  who  used  them. 
This  is  hardly  correct.  Cooperation  in  Utah 
gained  cohesive  strength  through  the  dominion  of 
the  Mormon  church.  Ditch  builders  did  not  have 
to  rely  on  their  own  resources  or  depend  upon  their 
unaided  wisdom  or  experience.  The  great  scheme 
of  public  improvement  which  niade  Utah  an  im- 
portant agricultural  commonwealth  was  largely 
planned  and  carried  out  under  the  aid  and  direction 
of  Brigham  Young  and  the  church  of  which  he  was 
the  head.  The  projects  of  this  great  captain  of 
industry  had  more  the  character  of  State  improve- 
ments or  of  fully  organized  business  corporations 
than  of  the  crude  cooperative  enterprises  under- 
taken by  the  unorganized  ditch  builders  of  other 
states.  But  even  under  the  capable  management 
and  financial  support  of  the  church,  cooperation  of 
settlers  was  not  equal  to  the  task  of  building  all 

55 


IRRIGATION    INSTITUTIONS 

of  the  irrigation  works  of  Utah.  For  forty  years 
the  table-land  at  the  north  end  of  Salt  Lake  Valley 
remained  unoccupied,  while  the  sons  of  pioneers 
sought  homes  in  other  states.  The  engineering 
skill,  and  the  more  than  million  dollars  required  to 
carry  water  along  the  three  miles  of  precipitous 
sides  of  the  Bear  River  Canyon,  and  build  the  long, 
high  aqueducts  to  bridge  the  Malade  River,  were 
more  than  local  effort  could  provide. 

Ideal  conditions  exist  where  each  irrigator  owns 
a  share  in  the  canal,  and  each  farm  has  a  share 
in  the  stream,  and  some  of  the  ditches  built  by 
the  people  and  for  the  people  have  come  near  to 
realizing  these  conditions.  This  is  true,  in  practice 
if  not  in  law,  of  many  of  the  partnership  canals  of 
California,  Colorado,  and  Utah.  Under  the  best 
of  these  systems,  water  is  furnished  at  less  cost, 
and  there  is  more  security  and  content  in  homes, 
than  under  any  other  system  yet  devised,  but 
no  plan,  however  perfect  in  theory,  can  succeed 
unless  common  sense  is  employed  in  its  operation. 
When  the  owners  of  a  ditch  submit  themselves  to 
needed  direction  and  control,  when  they  adopt  the 
methods  which  experience  has  shown  necessary 
in  the  management  of  any  large  enterprise,  their 
success  has  surpassed  that  of  the  corporate 
ditches;  but  farmers  have  too  often  refused  to 
do  this.  Civilization  has  not  yet  reached  the 
point  where  men,  without  preliminary  training, 
can  work  harmoniously  together,  as  is  shown  over 
and  over  again  in  other  forms  of  cooperative  enter- 

56 


THE   BEGINNINGS   OF   IRRIGATION 

prise.  That  the  arid  region  is  destined  to  be  one 
of  the  training  schools  in  cooperation  is  fully  be- 
lieved, but  the  conditions  were  not  ready  for  this 
at  the  outset,  and  in  time  there  came  the  third 
step  in  irrigation  development,  which  was  the 
building  of  corporation  canals. 

The  investment  of  corporate  capital  in  canals 
to  distribute  and  control  water  used  in  irrigation 
began  in  California,  but  spread  rapidly  through- 
out the  West.  For  a  quarter  of  a  century  it  has 
been  the  leading  factor  in  promoting  agricultural 
growth  of  the  western  two-fifths  of  the  United 
States.  It  has  been  the  agency  through  which 
millions  of  dollars  have  been  raised  and  expended, 
thousands  of  miles  of  canals  constructed,  and 
hundreds  of  thousands  of  acres  of  land  reclaimed. 
It  has  been  the  chief  agency  in  replacing  tempo- 
rary wooden  structures  by  massive  headworks  of 
steel  and  masonry,  and,  by  the  employment  of  the 
best  engineering  talent  and  the  introduction  of 
better  methods  of  construction,  has  promoted  the 
economy  and  success  with  which  water  is  now 
distributed  and  used. 

The  construction  of  irrigation  works  by  corpo- 
rate capital  came  as  a  natural  if  not  inevitable 
result.  There  came  a  time  in  the  districts  first 
settled,  when  the  opportunities  to  divert  water 
cheaply  had  largely  been  utilized,  and  when  the 
expenditure  required  was  beyond  the  means  of 
the  individual  or  the  cooperation  of  many  individ- 
uals. The  preliminary  outlay  was  too  great.  In 

57 


IRRIGATION   INSTITUTIONS 

Europe  and  Asia  nearly  all  the  large  canals  are 
owned  and  operated  as  state  works.  In  some 
cases  this  is  due  to  the  financial  unprofitableness 
of  private  works ;  in  others  to  the  fact  that  the  state 
seemed  the  proper  agency  to  make  the  large  ex- 
penditure required  and  also  the  safest  to  exercise 
the  power  over  the  welfare  of  communities  which 
the  control  of  water  gives.  Large  irrigation 
canals  have  been  considered  as  being,  in  their 
nature,  such  public  improvements  as  are  works 
to  supply  water  to  cities  and  towns.  Being  for 
the  service  of  the  public,  those  in  older  Euro- 
pean countries  have  largely  passed  under  public 
ownership. 

In  this  country  corporations  have,  so  far  as 
construction  is  concerned,  taken  the  place  of  gov- 
ernmental agencies  in  other  lands.  Practically 
all  of  the  larger  and  costlier  works  built  within 
the  last  two  decades  have  been  of  this  character. 
The  High  Line  Canal,  which  waters  the  land  sur- 
rounding Denver,  Colorado,  with  its  tunnel  through 
the  mountains  and  its  aqueduct  carried  along  the 
rocky  cliffs  below ;  the  canal  of  the  Wyoming  De- 
velopment Company,  with  its  tunnel  alone  costing 
more  than  all  the  Union  Colony  canals  of  Greeley 
combined,  as  have  its  reservoirs  for  storing  the 
entire  year's  discharge  of  Laramie  River;  the 
Sunnyside  Canal  of  Washington,  which  when  built 
traversed  sixty  miles  of  sage-brush  solitude,  —  are 
illustrations  in  three  States  of  the  nature  of  corpo- 
rate contributions  to  irrigation  development.  Even 

58 


THE   BEGINNINGS   OF   IRRIGATION 

in  Utah,  cooperation  was  not  sufficient  to  reclaim 
all  of  Salt  Lake  Valley. 

Water-right  complications  came  with  the  build- 
ing of  corporation  canals.  Previously  to  this,  it 
had  been  the  rule  for  those  who  built  ditches 
to  own  the  land  they  watered,  and  there  was  little 
practical  difference  as  to  whether  the  right  to 
water  went  with  the  ditch  or  with  the  land,  be- 
cause the  ownership  of  both  was  united  in  the 
same  person.  But  when  companies  were  organ- 
ized to  distribute  water  for  others  to  use,  there 
arose  the  question  as  to  who  was  the  owner  of  the 
right  to  the  water  diverted,  —  the  company  trans- 
porting the  water  or  the  farmer  who  applied  it 
to  the  land. 


59 


CHAPTER   IV 
THE  DOCTRINE  OF  APPROPRIATION 

WITH  the  exception  of  Texas  and  the  compara- 
tively small  areas  included  in  Spanish  and  Mexican 
land  grants,  the  arid  West  was  a  part  of  the  public 
domain.  The  laws  providing  for  the  disposal  of 
public  land  extended  to  this  region,  and  as  settle- 
ment proceeded,  land  offices  for  the  convenience 
of  settlers  were  established.  The  failure  of  these 
laws  to  meet  the  requirements  of  an  arid  region 
has  been  discussed  in  a  preceding  chapter.  The 
same  lack  of  knowledge  which  led  to  the  extension 
to  the  arid  region  of  land  laws  created  for  humid 
sections  led  to  a  far  more  important  oversight. 
The  streams  which  give  value  to  the  arid  lands 
were  left  to  be  divided  or  fought  over  by  settlers 
in  whatever  way  they  might  choose. 

The  first  generation  of  irrigators  gave  no  thought 
at  the  outset  to  their  right  to  use  creeks  or  rivers. 
They  found  water  running  to  waste  and  put  it  to 
use,  just  as  they  breathed  the  pure  air  or  enjoyed 
the  abundant  sunshine.  They  saw  no  more  need 
of  making  an  official  record  of  diverting  a  stream 
than  of  keeping  a  record  of  the  elk  and  antelope 
they  shot  for  food.  The  water  of  the  streams  and 
the  wild  animals  of  the  plains  were  a  part  of  the 
bounty  of  nature  in  a  land  of  primitive  conditions 

60 


THE   DOCTRINE   OF   APPROPRIATION 

and  of  unused  resources,  and  they  shot  the  wild 
game  for  meat  and  used  the  streams  to  provide 
bread  with  equal  disregard  of  the  declining  im- 
portance of  the  one  or  the  growing  importance 
of  the  other.  It  is  not  strange  that  they  failed  to 
foresee  that  irrigation  was  soon  to  be  a  leading 
industry  of  many  States,  and  that  the  social  and 
industrial  institutions  of  millions  of  people  were 
to  be  shaped  by  its  requirements.  Every  step  from 
the  first  furrow  of  the  ditch  to  the  last  watering  of 
the  crop  was  an  experiment  in  a  new  and  untried 
field.  The  industry  and  its  surroundings  were 
strange.  Nothing  was  known  of  the  laws  and 
customs  of  other  irrigated  lands,  and  the  pioneer 
farmer  of  the  arid  West  cared  little  for  such  knowl- 
edge. He  was  occupied  with  physical  obstacles. 
So  long  as  it  required  all  his  efforts  to  provide 
food  and  shelter  for  the  present,  he  Jiad  little  con- 
cern for  the  future.  The  conditions  under  which 
he  labored  were  such  as  to  cause  even  the  most 
thoughtful  to  neglect  the  problems  which  devel- 
opment was  creating.  The  early  settlements  were 
small  and  widely  separated.  There  was  an  al- 
most complete  failure  to  understand  the  over- 
shadowing importance  of  streams,  or  to  realize 
that  a  climate  so  different  from  that  of  the  East 
as  to  modify  profoundly  the  structure  of  plants 
and  the  colors  and  habits  of  animals  required  a 
corresponding  modification  of  laws  and  institu- 
tions to  bring  human  settlement  into  harmony  with 
its  environments. 

61 


IRRIGATION   INSTITUTIONS 

It  is  now  realized  that  the  federal  government 
should  have  asserted  the  same  ownership  over  the 
public  water  that  it  did  over  the  public  land,  and 
disposed  of  both  together.  Rights  to  streams 
could  then  have  been  acquired  by  some  orderly 
and  systematic  administrative  procedure.  The 
government  could  either  have  granted  franchises 
to  take  water  for  a  long  term  of  years,  as  is  done 
in  Italy,  or  have  granted  perpetual  licenses,  as 
is  done  in  Canada.  Under  either  plan,  titles  to 
water  would  have  come  from  the  public,  and 
their  peaceable  protection  would  have  been  as- 
sured. The  failure  of  the  Federal  or  State  gov- 
ernments to  assert  public  control  over  streams 
and  dispose  of  them  as  a  great  public  resource, 
left  water  to  be  dealt  with  as  though  it  belonged 
to  no  one,  and  could  be  appropriated  as  men  would 
a  nugget  of  gold  found  on  the  mountain  side. 

In  the  absence  of  public  control  men  took  the 
water  from  streams  and  used  it;  that  is,  they 
"  appropriated  "  it  —  using  the  word  "  appropriate  " 
in  its  ordinary  sense  —  to  take  for  one's  own  use. 
When  water  laws  were  enacted,  this  practice  was 
legalized  and  the  basis  of  such  laws  became  known 
as  the  doctrine  of  appropriation.  This  doctrine  is 
opposed  on  the  one  hand  to  the  common-law  doc- 
trine of  riparian  rights,  under  a  strict  interpretation 
of  which  water  must  not  be  taken  from  the  streams 
unless  it  can  be  returned  undiminished  in  volume, 
and  on  the  other  hand,  to  the  limitation  of  all  rights 
to  use  and  to  permanent  public  control  under  a  sys- 

62 


THE   DOCTRINE   OF   APPROPRIATION 

tern  whereby  all  water  is  disposed  of  by  license, 
which  has  been  adopted  in  some  European  coun- 
tries, the  British  colonies,  and  a  few  of  the  arid 
States. 

Originally  the  doctrine  was  simply  that  any  one 
needing  water  had  the  right  to  take  it.  The  changed 
conditions  in  the  West,  the  result  of  growth  in 
population,  and  a  consequent  increased  demand 
for  water,  have  led  to  the  many  limitations  and 
modifications  which  are  discussed  in  the  follow- 
ing pages.  Volumes  could  be  filled  with  the  defi- 
nitions of  appropriations  made  in  court  decisions, 
but  these  decisions  do  not  agree.  What  follows, 
therefore,  must  be  understood  as  a  general  out- 
line, which  is  subject  to  greater  or  less  variation  in 
different  States  and  in  different  communities  of  the 
same  State. 

So  long  as  streams  carried  a  surplus,  water  was 
diverted  and  used  without  restraint  and  with  lavish 
prodigality.  Irrigators  gave  scant  heed  to  their 
respective  rights,  because  so  long  as  each  had  all 
he  needed,  one  right  was  as  good  as  another.  In 
time,  however,  conditions  changed.  Irrigated  agri- 
culture ceased  to  be  an  experiment  and  became  an 
assured  success.  Streams  which  could  be  diverted 
at  a  small  cost  were  sought  out  by  ditch-builders, 
who  found  them  in  Colorado  along  the  eastern 
base  of  the  Rocky  Mountains,  and  in  Salt  Lake 
Valley,  Utah,  along  the  western  base  of  that 
range.  The  charm  of  the  climate  and  the  pro- 
ductiveness of  the  soil  in  California  also  drew 

63 


IRRIGATION   INSTITUTIONS 

men  to  its  valleys,  and  in  these  three  favored 
States  there  were  soon  many  streams  where  the 
needs  of  the  crops  were  greater  than  the  water- 
supply.  Wherever  this  condition  existed,  con- 
tests arose.  In  each  case  the  causes  were  much 
the  same.  Where  a  few  users  at  first  had  the 
entire  supply,  scores,  and  even  hundreds,  of  later 
comers  came  in  time  to  compete  for  its  control. 
With  each  recurring  season  of  low  water,  the 
owners  of  ditches  farthest  down  stream  watched 
with  anxious  hearts  the  results  of  the  labors  of 
their  neighbors  above.  Whether  they  saw  it  or 
not,  they  knew  that  farms  were  being  watered 
from  the  supply  on  which  they  depended.  As 
they  saw  the  stream  shrink  in  volume,  and  the 
torrent  of  the  mountain  canyon  become  a  tiny 
thread  in  the  sand  of  the  plain,  they  realized  that 
too  great  freedom  in  the  use  of  water  had  its  dis- 
advantages. Whenever  settlers  on  the  lower  part 
of  the  stream  were  robbed  by  irrigators  above,  they 
realized  that  far  up  in  the  mountains  as  much  water 
ran  as  in  former  years,  and  that  their  fields  were 
dry  because  of  increasing,  and  often  wasteful,  use 
above  them.  The  failure  of  their  year's  efforts  was 
aggravated  by  contrast  with  the  assured  success  of 
their  neighbors  who  took  the  stream  they  needed. 
Men  who  had  hitherto  believed  and  proclaimed  that 
water,  like  air,  must  be  left  free  to  all,  learned  what 
before  they  had  failed  to  realize,  —  that  to  make 
this  a  working  policy,  water  must  be  abundant 
enough  to  supply  the  needs  of  all. 

64 


THE   DOCTRINE   OF   APPROPRIATION 

Justice  seemed  to  demand  that  when  there  was 
not  water  enough  for  all,  those  who  first  used 
water  from  a  stream  should  have  the  better  right 
to  continue  that  use,  and  the  doctrine  of  priority 
was  the  result.  This  doctrine  grew  out  of  the 
belief  of  the  first  settlers  that  their  claims  were 
superior  to  those  of  later  comers,  and  they  insisted 
that  the  owner  of  the  last  ditch  built  should  be  the 
first  to  suffer  when  the  stream  failed  to  supply 
the  needs  of  all.  The  first  builders  of  ditches  could 
not  anticipate  how  many  were  to  follow.  Unless 
protected  by  some  such  principle,  the  greater  their 
success,  the  sooner  they  would  be  injured  by  the 
attempts  of  others  to  benefit  by  their  experience. 
The  general  principle  that  among  appropriators 
the  first  in  time  is  the  first  in  right,  is  now  a  recog- 
nized rule  in  the  water  laws  of  the  arid  region. 

As  many  ditches  were  built  about  the  same  time, 
it  became  necessary  to  prescribe  rules  for  deter- 
mining when  the  right  should  attach.  If  the  right 
should  date  from  the  time  of  actual  use  of  the 
water,  a  premium  would  be  placed  upon  poor  con- 
struction, and  it  might  happen  that  during  the 
construction  of  a  large  canal  smaller  canals  or 
those  more  easily  built  might  be  begun  and  com- 
pleted and  appropriate  all  the  water,  leaving  the 
large  canal  a  total  loss  to  its  builders.  To  avoid 
this  the  doctrine  of  relation  has  been  adopted  ;  that 
is,  the  right  does  not  date  from  the  time  the  water 
is  used  but  relates  back  to  the  time  of  the  beginning 
of  the  work.  To  prevent  an  abuse,  this  doctrine  has 
r  65 


IRRIGATION   INSTITUTIONS 

been  modified  by  the  provision  that  the  work  of 
construction  must  be  carried  on  with  due  diligence. 
Under  the  doctrine  of  relation,  a  water  right  is 
initiated  when  the  work  of  construction  begins,  and 
dates  from  that  time,  but  is  not  perfected  until  the 
water  has  been  actually  diverted  and  used.  The 
question  of  what  is  due  diligence  is  a  question  of 
fact  to  be  determined  in  each  particular  case,  and 
when  such  diligence  is  not  used,  the  right  dates 
from  the  time  of  use. 

In  some  of  the  States  a  'distinction  is  made 
between  the  different  uses  to  which  water  may  be 
applied.  In  Colorado,  Idaho,  Nebraska,  and  west- 
ern Kansas  appropriations  of  water  for  domestic 
purposes  take  precedence  over  appropriations  for 
irrigation.  In  California,  Montana,  Nevada,  New 
Mexico,  Washington,  Wyoming,  Texas,  North 
Dakota,  and  Oregon,  no  distinction  is  made  be- 
tween uses.  In  Utah  rights  are  divided  into 
classes  which  place  all  the  pioneers  on  the  same 
footing.  The  early  priorities  are  called  primary 
rights ;  those  of  later  dates  are  grouped  together 
and  called  secondary  rights.  In  the  other  States 
each  appropriation  has  a  separate  priority  num- 
ber. 

As  scarcity  of  water  led  to  the  adoption  of  the 
doctrine  of  priority,  the  two  led  to  the  necessity  of 
denning  the  quantity  of  water  to  which  an  appro- 
priator  should  be  entitled.  While  the  early  appro- 
priators  were  entitled  to  protection  in  their  use  of 
water,  the  later  comers  had  an  equal  claim  to  protec- 

66 


THE   DOCTRINE   OF   APPROPRIATION 

tion  from  an  enlargement  of  those  uses.  The  first 
appropriator  had  the  first  right,  but  he  had  not 
the  right  to  take  all  the  water  he  might  want  at 
any  future  time.  His  right  must,  in  justice  to 
others,  be  defined  as  to  quantity  as  well  as  to  time. 
In  theory,  beneficial  use  has  been  made  the  measure 
of  a  right.  That  is,  each  appropriator  has  a  right 
as  against  a  subsequent  appropriator  to  a  continued 
use  of  whatever  quantity  of  water  he  had  put  to  a 
beneficial  use  at  the  time  of  the  acquirement  of  the 
subsequent  right.  What  constitutes  beneficial  use, 
and  the  determination  of  the  quantity  of  water  so 
used,  has  been  left  to  the  courts  in  most  States, 
and  their  decisions  on  these  points  have  been  the 
cause  of  a  large  part  of  the  controversies  over 
water  rights.  This,  however,  is  not  a  fault  of  the 
theory,  but  of  its  application. 

With  the  adoption  of  the  doctrine  of  priority  the 
need  of  providing  some  notice  of  the  extent  of 
rights  already  acquired  became  apparent.  Such 
notice  was  needed  both  for  the  protection  of  the 
rights  already  in  existence  and  as  a  warning  to 
intending  investors,  of  the  extent  to  which  the 
stream  had  already  been  absorbed.  The  diversion 
of  water  without  any  official  record  of  the  time  when 
or  place  where  this  was  done,  led  to  much  con- 
fusion and  hardship,  and  it  became  necessary  to 
determine  the  priorities  and  amounts  of  appropria- 
tions. In  the  absence  of  official  records  the  facts 
which  govern  rights  in  streams  have  to  be  estab- 
lished by  testimony.  Often  this  determination 

67 


IRRIGATION   INSTITUTIONS 

does  not  take  place  for  many  years  after  irrigation 
begins.  Many  of  the  eye-witnesses  of  the  early 
development  have  disappeared;  others  are  dead; 
it  has  also  been  found  that  the  memory  of  those 
actually  present  is  often  at  fault.  Great  discrepan- 
cies regarding  the  dates  of  beginning  the  work, 
the  sizes  of  the  ditches,  and  the  amounts  of  water 
used  are  the  rule  rather  than  the  exception  in  these 
adjudications.  In  order  to  lessen  this,  if  possible, 
nearly  all  the  States  have  enacted  statutes  requir- 
ing intending  appropriators  of  water  to  make  some 
sort  of  record  of  what  has  been  done.  In  States 
where  mining  is  an  important  industry  the  cus- 
tom of  posting  notices  on  lode  or  placer  claims  was 
extended  to  water-right  filings.  The  laws  which 
require  such  notices  direct  persons  desiring  to  ap- 
propriate water  to  post  a  notice  in  a  conspicuous 
place  at  the  point  of  intended  diversion,  stating 
the  amount  of  water  claimed,  the  purpose  for  which 
it  is  claimed,  the  place  of  intended  use,  and  the 
means  by  which  it  is  to  be  diverted.  It  also  re- 
quires that  these  notices  be  recorded  within  a  pre- 
scribed period,  in  the  office  of  the  county  recorder 
of  the  county  in  which  the  notice  is  posted.  Such 
laws  are  in  force  in  Arizona,  California,  Idaho, 
Kansas,  Montana,  Utah,  and  Washington.  The 
statutes  of  Colorado  and  Texas  do  not  require  the 
posting  of  notices,  but  provide  for  the  recording  of 
these  claims.  Such  laws  were  formerly  in  force  in 
Wyoming  and  Nebraska,  but  have  been  superseded 
by  the  issuance  of  permits  by  the  State  authorities, 

68 


THE   DOCTRINE   OF  APPROPRIATION 

and  the  Colorado  law  has  recently  been  declared 
unconstitutional. 

In  most  of  the  States  the  laws  requiring  the 
filing  and  posting  of  notices  were  enacted  after  a 
great  many  rights  to  streams  had  been  estab- 
lished, and  it  was  at  once  realized  that  a  record  of 
water  rights  which  included  only  such  rights  as 
were  acquired  after  the  passage  of  the  acts  would 
be  of  no  value,  because  of  its  incompleteness. 
The  laws,  therefore,  provided  for  the  recording 
of  rights  acquired  before  their  passage,  but  with 
the  proviso  that  a  failure  to  so  record  a  right 
should  not  affect  its  validity.  This  proviso,  which 
was  added  to  save  the  law  from  being  declared 
unconstitutional,  has  accomplished  that  purpose, 
but  it  has  limited  its  usefulness,  since  it  leaves  the 
records  incomplete. 

The  weakness  of  these  laws  isftr^eir  failure  to 
provide  such  supervision  as  will  insure  that  the 
claims  filed  shall  be  accurate  or  even  reasonable, 
and  the  absence  of  any  record  of  the  completion 
of  the  works.  The  result  is  that  if  the  fees  are 
paid  any  claim  presented  is  recorded.  In  some 
sections  a  book  is  provided,  and  any  intending 
appropriator  of  water  goes  to  that  book  and  writes 
whatever  he  chooses,  and  the  clerk  attaches  his 
signature.  These  notices  fill  hundreds  of  bulky 
volumes.  Some  of  them  rise  to  the  dignity  of  curi- 
osities in  literature.  Examples  illustrating  their 
character  will  be  given  to  show  the  part  they  have 
played  in  water-right  controversies,  and  the  man- 


IRRIGATION   INSTITUTIONS 

ner  in  which  they  have  affected  the  irrigator's 
peace  of  mind.  But  before  this,  the  requirements 
of  these  laws  will  be  briefly  considered  in  order  to 
determine  whether  the  outcome  of  their  operations 
has  been  otherwise  than  might  reasonably  have 
been  anticipated. 

The  law  says  that  the  appropriator  must  post 
his  notice  in  writing  in  a  conspicuous  place  at  the 
point  of  intended  diversion.  Now  usually  the  con- 
spicuous place  where  the  water  is  diverted  is  in  some 
willow  thicket,  or  along  the  cottonwood-bordered 
banks  in  some  lonesome  bend  of  the  stream,  where, 
as  has  been  said  by  one  writer,  "only  jack-rabbits 
and  coyotes  see  the  notice  so  posted.  Streams  are 
not  diverted  in  the  main  streets  of  populous  vil- 
lages, nor  even  on  the  main  travelled  roads  of  the 
country."  Ditches  of  any  size  may  have  their 
heads  at  a  considerable  distance  up-stream  from 
the  place  where  the  water  is  used  in  irrigation, 
because  sufficient  elevation  has  to  be  secured  to 
cover  the  lands  to  be  watered.  Hence  few  people 
in  the  neighborhood  where  the  water  is  used  ever 
see  the  notices.  Even  their  display  in  the  post- 
office,  as  required  in  the  statutes  of  Utah,  is  seen 
to  avail  little  when  one  considers  the  immense  area 
influenced  by  these  claims  and  the  lack  of  travel 
across  them.  From  the  lowest  to  the  highest 
ditch  on  Weber  River,  in  Utah,  is  a  distance  of 
1 50  miles.  A  conspicuous  notice  on  the  Yellow- 
stone River  near  Livingstone,  Montana,  is  not 
likely  to  be  seen  by  appropriators  of  water  from 

70 


THE   DOCTRINE   OF  APPROPRIATION 

the  same  stream  at  Miles  City,  several  hundred 
miles  below. 

The  county  records  are  an  improvement  over 
notices  so  far  as  publicity  is  concerned,  but  they 
still  leave  much  to  be  desired.  Although  public, 
they  are  not  accessible.  The  claims  to  water  from 
the  Missouri  River  in  Montana  are  recorded  in 
fourteen  counties.  Territorial  claims  to  the  North 
Platte  River  in  Wyoming  were  recorded  in  four 
counties,  while  appropriations  from  the  South  Platte 
in  Colorado  are  recorded  in  a  larger  number  of 
counties.  The  county  seats  of  many  of  these  coun- 
ties are  not  directly  connected  by  railways.  To 
examine  all  the  records  affecting  a  single  appropri- 
ator's  right  would  often  require  a  week's  journey. 
Hence,  while  these  notices  are  open  to  the  public, 
the  public  seldom  sees  them.  Even  with  the  rec- 
ords before  him,  a  person  must  be  an  expert  to 
unearth  the  facts  which  they  contain.  As  a  rule, 
the  earlier  claims  are  recorded  in  miscellaneous 
records ;  that  is,  in  the  volumes  devoted  to  bills 
of  sale,  chattel  mortgages,  mining  locations,  etc. 
Sometimes  a  water  filing  and  a  mining  location 
are  included  in  the  same  document,  whose  title 
gives  no  clew  to  its  contents.  A  search  through 
these  records  is  usually  unavailing. 

None  of  the  laws  designate  how  notices  shall  be 
posted.  Hence  they  do  not  have  to  be  attached 
to  monuments  as  is  the  case  with  mining  locations. 
Often  the  posting  is  performed  by  attaching  the 
paper  to  a  convenient  tree.  Tacks  and  nails  ar$ 

7! 


IRRIGATION   INSTITUTIONS 

not  always  at  hand.  The  last  notice  seen  by  the 
writer  was  fastened  on  the  post  of  a  barbed-wire 
fence  by  being  hooked  over  two  of  the  projecting 
barbs.  The  locator  claimed  to  have  appropriated 
eight  thousand  inches.  If  his  statements  were  true, 
the  property  represented  by  that  paper  was  worth 
a  quarter  of  a  million  dollars.  Notices  like  these 
have  no  permanence.  The  wind  may  tear  them 
from  their  insecure  fastenings  a  few  minutes  after 
they  are  placed  in  position.  If  not  blown  away 
or  destroyed,  the  rain  will  blur  or  the  sun  will 
soon  fade  the  writing  into  illegibility,  but  that  mat- 
ters, little.  The  claimant  has  complied  with  the 
law  and  has  no  further  concern.  If  the  public  or 
any  individual  fails  to  see  it  through  lack  of  pub- 
licity or  the  transient  character  of  the  notice,  that 
is  not  the  claimant's  fault,  but  the  other  man's 
misfortune. 

One  notice  located  the  head-gate  "  somewhere 
on  the  western  slope  of  the  Big  Horn  Mountains," 
which  means  somewhere  within  the  canyons  and 
defiles  of  a  broken  and  precipitous  tract  of  coun- 
try a  hundred  miles  long  and  twenty  miles  wide. 
Another  reads  as  follows  :  "  All  persons  are  hereby 
notified  that  the  undersigned  hereby  gives  notice 
that  he  claims  for  his  own  use  and  benefit  all 
waters  flowing  within  the  banks  of  Wagonhouncl 
Creek  through  his  premises,  the  same  being  his 
ranch  and  range."  It  might  have  been  possible 
at  the  time  the  notice  was  posted  that  a  majority 
of  the  people  along  Wagonhound  Creek  knew 

72 


THE    DOCTRINE   OF   APPROPRIATION 

where  the  "  ranch  and  range  "  of  the  locator  were 
situated,  and  how  far  up  and  down  the  stream 
they  extended,  but  to  the  general  public,  seeking 
information  in  subsequent  years,  such  descriptions 
are  so  vague  and  indefinite  as  to  be  worthless. 
Nor  is  this  an  exceptional  instance.  Statement 
after  statement  describes  the  place  of  diversion 
as  being  where  the  notice  is  posted  or  the  place 
where  the  appropriator  stood.  The  following  ex- 
amples1 from  the  statements  on  two  streams  in 
California  are  typical  of  those  which  may  be 
found  in  the  records  of  every  arid  State:  — 

We,  the  undersigned,  claim  this  water  from  this  monument 
and  ditch  for  3  miles  down  this  canyon. 

At  the  point  above  where  the  road  crosses  the  stream  and 
where  the  channel  is  depressed  and  the  banks  are  steep  and 
precipitous,  being  about  8  feet  high,  the  right  bank  being 
covered  with  rocks  and  the  left  with  trees. 

The  water  running  in  a  north  and  south  direction  in  this 
canyon. 

This  notice  is  posted  about  3  miles  down  the  canyon  from 
some  three  arastras  run  by  steam  power,  and  about  400  yards 
above  an  old  stamp  mill  on  the  same  canyon,  or  creek. 

At  this  point,  being  a  short  distance  above  a  large  bowlder 
situated  in  the  bed  of  the  creek. 

This  notice  is  posted  on  a  tree  just  below  the  water  in  the 
canyon. 

While  in  a  majority  of  instances  appropriators 
have  done  the  best  they  could  conveniently  to  fix 
the  point  of  intended  diversion,  it  does  not  help 
the  perplexed  searcher  to  know  that  the  water  is 
appropriated  "  one-half  mile  below  Watson's  sheep 

v  l  Office  of  Experiment  Stations,  Bulletin  100. 
73 


IRRIGATION    INSTITUTIONS 

camp,"  or  to  know  that  it  is  taken  out  of  Antelope 
Creek  or  Willow  Creek,  when  there  are  seven 
Antelope  Creeks  in  a  single  county  in  Wyoming, 
or  five  Willow  Creeks,  as  is  the  case  in  one  county 
in  Montana. 

The  majority  of  claimants  knew  nothing  of  the 
standards  of  measurement  of  flowing  water.  The 
miner's  inch,  the  statute  inch,  the  four-inch  press- 
ure, and  the  cubic  foot  per  second  conveyed  no 
more  idea  of  the  actual  quantity  of  water  described 
than  if  they  had  been  Sanskrit.  Even  in  cases  of 
corporations,  claiming  large  amounts  of  water  and 
making  large  investments,  the  ignorance  of  stand- 
ards is  often  disagreeably  apparent.  Every  con- 
ceivable unit  has,  at  one  time  or  another,  been 
employed.  Square  inches  and  square  feet  of 
water  are  often  claimed,  as  well  as  cubic  inches 
and  cubic  feet  under  a  four-inch  pressure.  Claims 
to  immense  quantities  of  water  and  descriptions  of 
ditches  ridiculously  inadequate  for  their  diversion 
are  a  common  feature.  In  an  examination  of  the 
records  of  the  San  Joaquin  River,  in  California,1 
Professor  Soule  found  one  claim  for  3,456,000 
cubic  inches  under  a  pressure  of  four  inches,  the 
water  to  be  used  for  irrigation,  navigation,  domestic 
and  manufacturing  purposes.  Another  claimed 
250  feet  of  water  under  a  four-inch  pressure. 
Another  claimed  four  square  feet  of  the  water  of 
Whiskey  Creek  measured  under  a  four-inch  press- 
ure. 

1  Office  of  Experiment  Stations,  Bulletin  100,  p.  231. 
74 


THE  DOCTRINE  OF  APPROPRIATION 

Speaking  of  the  water-right  records  of  Los 
Angeles  River,  California,  Professor  E.  M.  Boggs 
says : 1 — 

Although  the  claimants  were  usually  most  liberal  to  them- 
selves, wording  their  claims  in  phrases  broad  enough  to  cover 
all  future  contingencies,  instances  are  numerous  in  which  the 
notices  show  that  they  had  no  adequate  conception  of  the 
quantity  of  water  claimed,  or  the  carrying  capacity  of 
the  specified  conduit.  One  proposed  to  divert  200  inches  by 
means  of  an  iron  pipe  2  inches  in  diameter  for  the  first  40 
feet,  then  one  inch  to  the  place  of  intended  use.  Another 
claims  3000  inches  of  water  under  a  four-inch  pressure,  to 
be  taken  out  in  a  pipe  I  \  inches  in  diameter.  The  perform- 
ance of  this  feat  would  require  the  water  to  pass  through 
the  i^-inch  pipe  at  the  rate  of  about  I  mile  a  second,  or  about 
three  times  the  velocity  of  a  rifle-bullet.  One  claimed,  "  All 
the  water  amounting  to  150  inches  of  hydraulic  pressure  and 
4-feet  measurement."  Another  notice  reads:  "The  under- 
signed claims  4  feet  of  water  from  under  a  4-inch  pressure." 
Another:  "To  the  extent  of  100  square  inches  miner's  meas- 
urement." Still  another:  "100,000,000  cubic  feet."  One 
prudent  and  far-sighted  man,  after  claiming  a  liberal  flow  of 
water  and  describing  the  ordinary  means  of  diverting  the  same, 
provides  for  the  emergency  of  future  dry  years  by  adding :  "  I 
also  claim  the  right  to  hand  or  pack  from  here  to  said  ranch 
in  case  of  drouth  or  too  little  to  run  down." 

The  wording  of  recorded  claims  shows  that  as 
time  went  on  men  attached  more  and  more  impor- 
tance to  these  records.  It  is  evident  that  at  first 
the  belief  prevailed  that  beneficial  use  was  the 
measure  of  a  right,  but  later,  especially  after  a  few 
adjudications  of  rights  had  been  made  and  decrees 
had  been  rendered  to  many  times  the  amount  in 

1  Office  of  Experiment  Stations,  Bulletin  100,  p.  334. 

75 


IRRIGATION    INSTITUTIONS 

actual  use,  a  large  number  of  appropriators  came 
to  believe  that  it  was  not  the  amount  of  water 
used  but  the  amount  of  water  filed  upon  which 
governed ;  and  that,  while  it  might  not  be  that  a 
written  record  was  alone  necessary  to  secure  a 
water  right,  it  was  by  far  the  most  important  step. 
With  the  acceptance  of  this  idea  claims  began  to 
take  on  speculative  character,  and  claims  to  exces- 
sive volumes  of  water  began  to  be  not  simply 
numerous,  but  the  most  conspicuous  feature  of  the 
records. 

The  records  of  one  stream  show  that  all  of  the 
earlier  claims  were  for  small  volumes,  varying 
from  one  cubic  foot  per  second  to  five  cubic  feet 
per  second.  These  were  probably  a  close  approxi- 
mation to  the  actual  needs  of  the  claimants ; 
but  a  change  in  the  policy  of  claimants  was 
marked  when  one  appropriator,  desiring  to  secure 
the  surplus  water-supply  for  future  consumption 
or  sale,  claimed  300  cubic  feet  per  second.  This 
was  more  than  twice  the  water  carried  by  the 
stream,  but  every  claim  which  followed  was  for 
300  cubic  feet  per  second.  The  records  of  Boise 
River,  in  Idaho,  show  151  claims,  amounting  in  the 
aggregate  to  6,361,800  inches.  The  actual  flow  of 
the  river  in  September,  1898,  was  35,000  inches. 
On  a  little  stream  in  Wyoming,  which  usually  goes 
dry  in  August,  there  is  a  claim  for  60,000  cubic 
feet  of  water  per  second,  enough  to  irrigate 
6,000,000  acres  of  land.  The  filing  of  this  claim 
does  not  indicate  that  the  appropriator  thought  he 

76 


THE   DOCTRINE   OF   APPROPRIATION 

could  irrigate  6,000,000  acres.  He  had  no  real 
understanding  of  what  he  was  claiming  or  what  the 
stream  carried.  A  great  many  appropriators  have 
saved  themselves  the  labor  of  fixing  upon  a  speci- 
fied amount  by  claiming  all  the  water  in  the 
stream.  One  of  the  absurdities  of  these  records 
is  to  find  in  succession  a  series  of  statements  that 
the  claimant  has  appropriated  and  taken  for  his 
own  use  and  benefit  the  entire  water-supply.  It 
often  happens  that  the  claims  against  a  river  amount 
to  less  than  those  against  some  of  its  tributaries. 
Nor  are  all  of  the  claims  excessive.  Excessive 
claims  may  be  followed  by  others  which  claim  less 
rather  than  more  than  the  actual  volume  used. 

The  law  says  that  the  appropriation  must  be 
for  some  useful  or  beneficial  purpose.  Recognizing 
this,  it  has  been  claimed  for  every  conceivable  pur- 
pose to  which  it  could  be  applied,  and  the  uses 
stated  in  the  notices  have  changed  from  time  to 
time  as  the  demand  for  water  for  different  purposes 
has  arisen.  At  the  outset,  agricultural  and  do- 
mestic uses  were  usually  specified,  except  in  min- 
eral districts,  where  mining  was  the  use  most 
commonly  stated.  Later  on,  as  cities  and  towns 
sprang  up  and  water  for  domestic  use  and  manu- 
facturing purposes  became  more  important,  these 
have  been  added,  and  still  later  the  utilization  of 
water  for  the  generation  of  electricity  has  caused 
that  item  to  be  included  in  all  of  the  comprehensive 
claims.  One  appropriator  describes  the  beneficial 
uses  to  which  the  water  is  to  be  applied  as  "  irriga- 

77 


IRRIGATION   INSTITUTIONS 

tion,  motive,  and  mining,  and  for  supplying  cities, 
towns  and  villages,"  and  then,  fearing  that  his 
ingenuity  in  discovering  uses  was  hardly  equal  to 
the  occasion,  added,  "  such  appropriation  to  be  ex- 
ercised as  circumstances  may  require."  Another  de- 
scribed the  beneficial  use  intended  as  "irrigation  and 
such  other  uses  as  I  may  deem  proper."  Another: 
"  Power,  irrigation,  domestic,  stock,  agricultural, 
mechanical,  commercial  a&&  importation."  Another 
ended  his  record  with  this :  "  And  John  Brown 
further  declares  that  he  appropriated  and  took 
said  water,  together  with  all  and  singly  the  heredit- 
aments and  appurtenances  thereunto  belonging  or 
appertaining  or  to  accrue  to  the  same."  Just  what 
the  hereditaments  and  appurtenances  of  running 
water  might  be  was  left  for  the  other  appropriators 
to  ascertain. 

A  land  system  which  would  permit  of  a  score  of 
filings  on  the  same  quarter-section,  and  then  leave 
the  claimants  to  fight  for  its  possession,  would  not 
be  held  in  high  esteem.  The  law  for  recording 
appropriations  of  water  which  places  no  restrictions 
on  the  number  or  volume  of  these  claims  is  just 
as  illogical,  and  is  fraught  with  more  serious  evil. 
To  say  the  least,  these  records  are  of  little  value. 
The  clerk  or  the  recorder  has  to  write  down  what- 
ever is  submitted.  He  has  no  means  of  knowing 
whether  a  new  claim  is  in  accordance  with  facts, 
whether  a  projected  work  will  be  carried  out,  or  if 
it  will  be  a  public  benefit.  No  means  is  provided 
for  ascertaining  if  the  claims  recorded  have  been 

78 


THE   DOCTRINE   OF  APPROPRIATION 

followed  by  construction.  No  provision  is  made 
for  measuring  the  flow  of  streams,  in  order  to 
know  if  the  amount  appropriated  is  equal  to  or  in 
excess  of  the  supply.  The  law  says  that  the  ap- 
propriation must  be  made  for  a  useful  or  benefi- 
cial purpose,  but  it  goes  no  farther.  It  provides 
no  methods  by  which  the  public  may  ascertain 
promptly  and  inexpensively  whether  the  amount 
taken  out  is  the  amount  to  which  claim  was  laid, 
whether  it  has  been  applied  beneficially  or  not 
applied  at  all.  If  the  claimant  proceeds  diligently 
and  uninterruptedly  with  construction  and  uses 
the  water  as  described  in  his  notice,  he  is  entitled 
to  the  right  thereby  acquired,  and  it  should  be  pro- 
tected without  cost  to  him.  On  the  other  hand,  if 
a  claim  is  not  completed  in  accordance  with  state- 
ments of  the  notice,  if  the  water  claimed  is  not 
all  used  or  not  used  in  the  manner  specified,  it 
is  equally  important  that  the  records  show  these 
facts.  Unfortunately,  the  completion  of  appro- 
priations in  accordance  with  the  statements  of 
claims  is  the  exception  rather  than  the  rule,  in 
which  case  the  recorded  notices  are  false  and  mis- 
leading and  in  time  acquire  a  force  and  standing  to 
which  they  are  not  entitled. 

In  some  cases  it  is  also  apparent  that  compliance 
with  the  statute  was  perfunctory,  and  many  who 
were  seeming  to  fulfil  the  letter  of  the  law  were 
equally  anxious  to  evade  its  spirit.  Many  also  ob- 
jected to  recording  their  claims.  They  had  little 
faith  in  the  value  of  documentary  records.  They 

79 


IRRIGATION   INSTITUTIONS 

believed  that  the  open,  notorious  use  of  water  was 
all  that  was  necessary  to  procure  and  preserve  their 
rights,  and  there  are  to-day  on  nearly  every  stream 
of  any  importance  many  old  rights  of  which  there 
is  no  record  whatever.  The  records  are  as  uncer- 
tain in  what  they  omit  as  in  what  they  contain. 

The  filing  of  these  claims  does  not  give  com- 
plete title  to  water.  In  all  of  the  States  except 
Wyoming,  Nebraska,  and  Nevada,  this  has  to  be 
established  by  litigation  in  the  courts.  Sometimes 
these  lawsuits  take  the  form  of  injunctions,  some- 
times equitable  actions  to  determine  the  respective 
rights  of  appropriators  or  to  quiet  their  titles.  But 
whatever  their  form,  they  all  have  one  thing  in 
common  :  they  are  waged  as  though  the  issue  were 
purely  a  private  matter,  and  the  disposal  of  the 
rains  and  snows  that  make  streams  were  something 
in  which  the  public  had  no  concern.  There  is  no 
disinterested  or  public  measurement  of  the  ditches 
and  streams  or  of  the  lands  irrigated.  The  testi- 
mony submitted  is  often  inaccurate  and  contradic- 
tory, but  it  is  all  the  judge  has  on  which  to  base 
his  decree.  Even  the  government,  as  the  owner 
of  large  areas  of  land  requiring  irrigation,  is  never 
a  party  to  these  suits,  nor  is  the  State,  although 
nothing  so  vitally  concerns  the  public  welfare  as 
the  establishment  of  ownership  or  control  over 
streams.  One  of  the  results  of  this  lack  of  pub- 
lic investigation  of  actual  conditions  has  been  the 
granting  of  extravagant  rights  to  water.  The  ex- 
cesses in  this  line  have  been  almost  as  marked  as 

80 


THE   DOCTRINE   OF   APPROPRIATION 

in  the  filing  of  claims.  In  some  instances  appro- 
priators  have  agreed  among  themselves  as  to  the 
share  of  the  stream  which  each  would  claim  in 
court,  and,  as  they  furnished  the  testimony,  there 
was  little  difficulty  in  securing  a  decree  in  accord- 
ance with  this  agreement,  the  court  being  either 
an  unconscious  or  helpless  instrument  for  giving 
legal  sanction  to  a  fiction  if  not  a  fraud.  In  some 
cases  these  excessive  decrees  have  not  stopped  with 
giving  away  all  the  actual  water-supply,  but  grant 
rights  to  many  times  this  volume. 

The  early  practice  was  to  give  a  right  to  divert 
water  all  the  time.  Experience  has  shown  that 
this  leads  to  abuses,  because  it  does  not  agree  with 
the  way  irrigators  use  water.  Continuous  irriga- 
tion would  be  as  injurious  as  a  continuous  rain. 
No  farmer  irrigates  all  the  time ;  few  farmers  irri- 
gate half  the  time.  Some  irrigate  in  winter  and 
grow  crops  with  the  moisture  stored  up  in  the 
soil.  In  some  sections  water  runs  in  the  ditches 
less  than  a  hundred  days.  In  a  recent  report  of 
the  Irrigation  Investigations  of  the  Office  of  Experi- 
ment Stations,  United  States  Department  of  Agri- 
culture, the  records  of  sixty  farmers  in  one  State 
showed  that  the  average  farmer  used  water  less 
than  three  weeks  in  the  year.  Some  farmers  used 
water  only  one  week,  and  scarcely  any  of  them 
more  than  one  hundred  days.  In  districts  where 
irrigation  extends  from  April  to  October,  the  use 
of  water  by  individual  farmers  is  intermittent,  de- 
termined largely  by  the  local  rainfall  for  the  season 
G  Si 


IRRIGATION    INSTITUTIONS 

and  the  kind  of  crops  grown,  hence  a  right  to  a 
continuous  flow  gives  control  of  a  water-supply 
for  long  periods  when  a  single  irrigator  has  no  use 
for  it. 

As  the  demands  upon  the  water-supply  have 
grown,  necessity  has  led  to  a  gradual  decrease 
in  the  freedom  of  the  appropriate  and  an  in- 
crease in  the  control  exercised  by  the  public  au- 
thorities. This  change  has  been  so  gradual  that 
the  legislatures  of  Wyoming  and  Nebraska  have 
in  effect  abandoned  the  doctrine  of  appropriation, 
although  retaining  the  word  in  their  statutes. 
The  person  wishing  to  use  water  must  secure  a 
permit  from  a  board  of  State  officials,  and  the  right 
acquired  is  not  governed  by  the  appropriator's 
claim,  but  by  the  license  for  the  diversion  issued  by 
the  State  authorities.  This  tendency  toward  public 
supervision  is  manifest  in  the  other  arid  States,  and 
it  seems  only  a  question  of  time  when  the  doctrine 
of  appropriation  will  give  way  to  complete  public 
supervision.  The  law  of  Wyoming,  the  pioneer 
in  this  new  system,  is  discussed  in  a  succeeding 
chapter. 

Some  of  the  early  discussions  of  water  rights 
have  been  preserved.  They  show  that  each  irri- 
gator favored  the  doctrine  which  promised  the 
most  water  for  his  ditch  or  farm.  Some  believed 
there  should  be  the  same  property  right  in  water 
as  in  the  land  to  which  the  water  was  applied. 
This  would  impress  on  streams  the  same  sort  of 
ownership  which  exists  in  corn,  wheat,  live  stock, 

82 


THE   DOCTRINE   OF   APPROPRIATION 

or  any  other  form  of  personal  property.  Others 
believed  that  an  appropriation  of  water  gave  only 
a  right  to  its  use,  and  that  when  the  use  ceased 
the  right  ceased.  The  distinction  between  the  two 
doctrines  seemed  to  many  to  be  immaterial.  What 
the  irrigator  wanted  was  to  be  sure  of  his  share  in 
the  stream  whenever  he  needed  it,  and  of  protec- 
tion against  the  encroachments  of  later  comers. 
When  the  first  water  rights  were  established,  the 
appropriators  were,  as  a  rule,  actual  users  of  the 
water  appropriated.  The  owner  of  a  farm  owned 
the  ditch  which  watered  it,  and  it  was  of  little 
practical  consequence  to  him  whether  he  acquired 
his  water  right  as  a  ditch-owner  or  as  a  land- 
owner, whether  he  held  it  as  personal  property  or 
as  an  easement  attached  to  the  lands  irrigated.  It 
was  the  belief  of  the  Mormon  leaders  that  rights 
to  water  should  be  inseparable  from  the  land  on 
which  it  is  used.  In  1861  Colorado  enacted  a  water 
law  which  was  reenacted  in  Wyoming  in  1876, 
under  which  rights  were  attached  to  land. 

The  discussion  which  preceded  the  framing 
and  passage  of  the  Colorado  irrigation  law  in  1879 
was  largely  devoted  to  the  nature  of  rights  to  water 
which  should  be  recognized.  All  were  agreed  that 
these  rights  should  be  attached  to  either  the  land 
or  the  ditches.  Those  who  favored  making  rights  to 
water  inseparable  from  the  land  where  it  was  used 
pointed  out  that  this  would  prevent  speculative 
ownership  of  streams,  or  the  granting  of  excessive 
amounts  of  water  by  the  courts,  because  the  needs 

83 


IRRIGATION    INSTITUTIONS 

of  the  land  would  always  serve  to  measure  its 
share  in  the  stream,  and  that  these  rights,  instead 
of  being  enlarged  as  time  went  on,  would  become 
smaller  because,  as  the  subsoil  became  filled,  less 
water  would  be  needed  and  more  of  the  stream 
left  for  irrigators  with  later  rights.  At  the  same 
time,  this  doctrine  would  work  no  hardship  to 
earlier  users,  because  it  would  provide  them  with 
all  the  water  their  land  needed.  The  advocates  of 
this  policy  were  able  to  fortify  their  argument  by 
showing  that  it  was  in  accord  with  the  experience 
of  southern  Europe.  The  law,  however,  was 
framed  on  the  theory  that  rights  to  water  should 
belong  to  the  ditches,  and  be  based  on  their  esti- 
mated capacity  rather  than  on  the  needs  of  the 
land.  This  plan  was  adopted  because  it  seemed 
simpler  than  the  other.  Those  who  favored  it 
pointed  out  that  giving  to  each  ditch  a  certain 
volume  of  water  flowing  all  the  time  would  make 
it  easier  for  a  water  commissioner  to  divide  the 
stream.  If  he  was  given  a  list  of  the  ditches  and 
of  the  volume  of  water  belonging  to  each,  all  he 
would  have  to  do  would  be  to  regulate  the  head- 
gates  in  such  a  way  as  to  see  that  this  quantity 
was  turned  in.  If,  on  the  other  hand,  rights  were 
based  on  the  needs  of  the  land  irrigated,  it  would 
require  constant  oversight  to  determine  how  much 
water  was  being  used,  and  constant  change  in  the 
amount  of  water  turned  into  each  ditch.  The 
owners  of  large  canals  built  by  corporations  to 
furnish  water  to  farmers  rather  than  to  use  it 

84 


THE    DOCTRINE   OF   APPROPRIATION 

themselves,  naturally  favored  making  the  ditch  the 
appropriator  rather  than  the  land.  It  added  to 
the  security  and  value  of  their  investments  to  own 
the  commodity  they  were  distributing  and  be  able 
to  fix  both  the  price  and  conditions  of  its  disposal. 
The  owners  of  these  canals  were,  as  a  rule,  men 
of  shrewdness  and  foresight.  They  had  the  leis- 
ure to  study  the  economic  import  of  the  water- 
right  doctrines  under  discussion,  and  understood 
the  value  of  laws  which  would  give  them  control 
of  the  water  diverted.  The  irrigators,  on  the  other 
hand,  gave  little  heed  to  the  subject.  They  were 
busy  ploughing  their  fields,  planting  their  crops, 
and  learning  the  methods  of  a  new  industry.  The 
tendency  to  make  the  ditch  the  appropriator  was 
strengthened  by  the  fact  that  water  rights  were  to 
be  established  by  litigation.  The  desire  of  farmers 
is  to  keep  out  of  lawsuits.  They  have  neither  the 
means  nor  the  disposition  to  engage  in  them.  The 
owners  of  large  irrigation  enterprises,  on  the  other 
hand,  employed  able  legal  counsel  to  frame  their 
water-right  contracts  and  to  look  after  their  inter, 
ests  in  the  courts.  It  was  to  the  supposed  inter- 
ests of  their  clients  to  have  the  appropriation  go  to 
the  ditch-owner,  and  in  this  way  it  gradually  came 
about  that  many  of  the  ablest  attorneys  of  the 
West  were  retained  or  enlisted  in  favor  of  this 
policy. 

Many  who  have  received  rights  to  a  perpetual 
flow  find  that  the  ability  to  rent  or  sell  the  right 
to  other  users  during  the  period  of  their  non-use, 

85 


IRRIGATION   INSTITUTIONS 

is  more  valuable  than  their  own  use  of  the  water. 
Especially  is  this  true  on  streams  where  more 
land  is  cultivated  than  can  be  thoroughly  watered. 
The  holders  of  inferior  rights  live  in  fear  of 
drouth,  and  are  willing  to  pay  high  prices  for  the 
surplus  of  the  earlier  appropriations.  The  ten- 
dency to  augment  the  influence  and  value  of  early 
priorities  is  becoming  more  manifest  every  year. 
The  owners  of  large  appropriations  are  applying 
them  to  new  lands  and  extending  their  influence 
far  beyond  the  limits  of  the  land  originally  irri- 
gated. Sales  of  water  rights  to  irrigators  are 
made  under  contracts  which  make  the  inch  of 
water  supplied  to  one  farmer  this  week,  serve 
another  farmer  the  following  week,  and  a  different 
farmer  the  third  week,  so  that  the  inch,  instead 
of  irrigating  one  acre  for  one  man,  irrigates  one 
acre  each  for  three  men.  There  are  other  ditches 
which  can  irrigate  only  limited  areas,  yet  have 
appropriations  to  ten  or  twenty  times  the  volume 
needed.  In  some  States  the  owners  of  these  sur- 
plus rights  sell  or  rent  them  to  other  ditch-owners 
or  to  irrigators  on  other  lands.  As  the  years  go 
on,  the  value  of  these  rights  is  assuming  fabulous 
proportions.  The  rights  to  City  Creek,  Utah,  the 
first  stream  diverted  by  the  Mormons,  are  now 
worth  $1,600,000,  exclusive  of  either  the  land  or 
ditches  where  the  water  was  first  used. 

The  speculative  value  of  the  personal  ownership 
of  running  water  is  so  great  that  every  argument 
which  the  ingenuity  and  intellect  can  produce  has 

86 


THE    DOCTRINE   OF   APPROPRIATION 

been  presented  to  the  courts  in  its  favor.  That 
it  is  opposed  to  public  welfare,  that  it  places  users 
at  the  mercy  of  appropriators,  is  not  a  matter  of 
theory,  but  of  experience.  Every  objection  which 
has  ever  been  urged  against  the  granting  of  free 
and  unlimited  franchises  to  the  public  utilities  of 
cities  applies  with  greater  force  to  giving  away 
the  water  of  Western  streams.  Nevertheless,  city 
councils  continue  to  grant  such  franchises,  and 
speculative  titles  to  water  continue  to  be  declared 
vested.  The  cause  is  the  same  in  both  cases. 
Organized  selfishness  is  more  potent  than  unor- 
ganized consideration  for  the  public  interests. 
The  appropriator  has  been  in  court  in  person  and 
by  attorney.  The  rights  of  the  water-user  apart 
from  the  ditch-owner  have  seldom  been  considered. 
Hence  it  is  coming  to  be,  that  rights  to  running 
water  are  ceasing  to  conform  to  the  requirements 
of  any  use,  are  being  separated  from  any  place 
of  diversion  or  application,  and  are  being  bought 
and  sold  and  leased  like  land  or  live  stock  or  any 
other  property. 


CHAPTER  V 
CONTRACT  WATER  RIGHTS 

WHERE  ditch  companies  appropriate  the  water 
of  streams  and  sell  rights  in  these  appropriations 
to  farmers,  the  rights  of  the  irrigator  are  deter- 
mined by  his  contract  with  the  company.  These 
private  water  contracts  have,  in  many  instances, 
more  influence  over  the  watering  of  farms 
than  the  State  irrigation  code,  because  of  their 
number  and  the  large  acreage  of  irrigated  land 
which  they  represent.  One  canal  company  has 
an  appropriation  from  the  South  Platte  River 
which  will  more  than  supply  1000  eighty-acre 
farms.  Another  company  has  an  appropriation 
larger  than  the  average  flow  of  the  Poudre  River. 
Five  hundred  farms  in  Idaho  are  supplied  from 
the  appropriation  of  a  single  canal  company,  and 
the  contracts  of  another  canal  company  govern  the 
distribution  of  water  to  over  100,000  acres  of  land, 
and  the  lawns  and  gardens  of  two  thriving  towns. 

The  control  over  irrigation  exercised  by  these 
private  contracts  has  received  small  consideration, 
either  in  current  discussions  or  court  decisions. 
Wherever  water  rights  are  referred  to,  it  is  as- 
sumed that  they  are  the  direct  outcome  of  State  ir- 
rigation codes,  and  that  all  the  privileges  conferred 

88 


CONTRACT  WATER   RIGHTS 

by  State  laws  are  enjoyed  by  irrigators.  This 
would  be  true  if  the  water  rights  were  attached  to 
the  land  or  were  acquired  by  the  users  of  water. 
It  would  also  be  true  if  the  companies  which  have 
appropriated  streams  had  in  their  contracts  or 
deeds  conferred  on  farmers  all  the  privileges  they 
acquired.  This  is  not  the  case,  however.  The 
sale  of  a  water  right  by  a  ditch  company  rarely 
carries  with  it  a  share  in  the  original  appropriation. 
The  water  right  sold  is  hedged  about  with  restric- 
tions and  stipulations,  and  varies  so  widely  from 
the  original  grant  as  to  make  contract  water  rights 
a  distinct  factor  in  irrigation  development  and  as 
worthy  of  study  as  the  State  laws  themselves. 

While  contracts  vary  widely  in  detail,  they  can 
be  classified  into  three  general  divisions  :  — 

(1)  Those  under  which  water  is  furnished  for  a 
stipulated  annual  rental. 

(2)  Those  providing  for  the  sale  of  perpetual 
rights   for   a  fixed  sum,  with  the   addition  of   an 
annual  charge  for  operation  and  maintenance  of 
irrigation  works. 

(3)  Those  providing  for  the  sale  of  an  interest 
in  the  canal  and  the  appropriation,  accompanied 
by  conditions  governing  the  operation  of  the  canal 
until  it  is  turned  over  to  the  shareholders. 

(l)   Annual  Water  Rentals 

The  plan  most  favored  at  first  by  irrigation 
companies  was  to  furnish  farmers  the  water  they 
needed  at  so  much  a  year,  as  dwellers  in  cities  are 


IRRIGATION   INSTITUTIONS 

furnished  water  for  domestic  uses  by  municipal 
water  companies.  This  plan  has  proven  unsatis- 
factory because,  as  irrigation  companies  found  to 
their  sorrow,  they  were  dealing  with  human  nature 
as  well  as  the  needs  of  the  arid  lands.  Nearly  all 
of  their  customers  were  from  the  humid  East,  where 
their  fields  had  been  watered  from  the  clouds  for 
nothing.  They  had  an  inherited  prejudice  against 
paying  for  what  the  clouds  had  supplied  without 
cost,  and  were  inclined  to  look  at  any  charge  for 
water  as  exorbitant;  hence  contests  over  water 
rents  soon  arose.  In  some  cases  they  had  a  just 
foundation  for  contest  in  excessive  rentals.  In 
others  the  unrest  and  dissatisfaction  were  due  to 
their  dependent  condition.  Although  they  owned 
the  land,  they  could  grow  nothing  on  it  without  the 
aid  of  the  canal  company,  and  they  saw  before 
them  the  danger  of  having  to  pay  such  rentals  as 
would  absorb  all  the  profits  of  their  industry.  This 
fear  of  future  evils  rather  than  of  present  ones 
often  provoked  a  spirit  of  hostility  toward  canal 
companies  and  led  ultimately  to  a  general  aban- 
donment of  the  plan  of  furnishing  water  under 
yearly  contracts. 

Without  any  disposition  to  be  unfair  on  the  part 
of  either  farmer  or  ditch  company,  there  is  ample 
reason  for  an  honest  difference  of  opinion  as  to 
what  is  a  reasonable  rental.  Ditch-owners  believe 
that  water  rates  should  be  high  enough  to  pay 
an  interest  on  their  investment,  while  to  farmers, 
rentals,  to  be  reasonable,  must  be  low  enough  to 

90 


CONTRACT   WATER   RIGHTS 

enable  them  to  cultivate  their  land  at  a  profit.  In 
many  instances,  rentals  that  would  pay  interest  on 
the  bonds  and  stocks  of  the  ditch  company  would 
bankrupt  farmers.  One  ditch  company  which 
supplies  water  to  10,000  acres  of  land  has  ex- 
pended $1,600,000  in  the  construction  of  its  canal, 
and  has  to  pay  from  $10,000  to  $20,000  a  year 
to  keep  it  in  repair.  Six  per  cent  interest  on  the 
investment  would  be  $96,000.  Adding  $15,000 
for  operating  expenses  makes  it  necessary  for  the 
farmers  to  pay  $111,000  in  water  rentals  to  make 
this  enterprise  self-supporting.  This  would  be 
over  $  1 1  an  acre  —  a  prohibitive  price.  The  farm- 
ers are  poor;  their  lands  are  unimproved,  and 
they  have  a  heavy  outlay  in  building  laterals,  farm 
buildings  and  fences,  and  are  not  able  to  pay  over 
$2.50  per  acre  for  the  water  they  use.  This  is  the 
largest  price  they  have  paid,  and  as  a  result  the 
ditch  company  has  been  unable  to  pay  interest  on 
its  securities,  and  can  barely  meet  its  operating 
expenses.  The  annual  interest  on  the  bonds  of 
the  W.  D.  Company  is  $45,000,  and  the  expense  of 
maintaining  the  canal  $20,000  a  year,  making  in 
all  $65,000,  which  the  farmers  must  pay  in  water 
rentals  to  make  the  enterprise  self -supporting.  The 
canal  furnishes  water  to  20,000  acres  of  land.  A 
reasonable  rental  from  the  standpoint  of  a  ditch 
company  would  at  least  pay  the  interest  on  their 
bonds  and  the  operating  expenses  of  the  ditch; 
but  to  pay  $3  an  acre  for  water  would  drive  every 
farmer  under  the  canal  into  bankruptcy. 


IRRIGATION    INSTITUTIONS 

In  controversies  over  rates  the  farmers  are  at 
an  advantage.  They  are  on  the  ground.  Their 
greater  number  gives  them  a  local  influence  far 
more  potent  than  that  of  the  canal  company,  which 
is  often  a  foreign  corporation,  and  the  object  of 
local  prejudice  because  of  this.  Legislation  for 
fixing  water  rentals  by  local  boards  has  been  en- 
acted in  nearly  every  arid  State.  If  this  legisla- 
tion had  been  properly  guarded,  it  would  have  been 
of  great  service.  There  is  need  of  some  means  of 
arbitration  by  which  long  and  expensive  litigation 
may  be  averted,  but  such  arbitration  to  be  just  and 
satisfactory  must  be  impartial  and  in  the  hands  of 
experienced  and  competent  men.  Unfortunately, 
the  laws  do  not  provide  proper  tribunals.  In  nearly 
every  case  the  settlement  of  these  questions  has 
been  intrusted  to  boards  of  county  commissioners 
or  supervisors.  As  these  supervisors  are  elected 
to  perform  other  duties,  they  rarely  have  either 
the  time  or  expert  knowledge  needed  to  reach  a 
just  conclusion. 

In  one  contest  of  this  kind  the  annual  rental 
fixed  was  20  cents  per  acre.  This  would  not  pay 
the  expenses  of  the  ditch  superintendent,  to  say 
nothing  of  the  interest  on  the  cost  of  the  canal, 
which  was  $220,000.  After  operating  at  a  loss  for 
several  years  and  seeing  no  hope  of  better  results, 
the  builders  abandoned  this  canal,  and  it  fell  into 
the  possession  of  the  settlers.  The  expenses  of  the 
operation  alone  for  the  first  year  were  $1.20  an 
acre,  or  six  times  the  rate  fixed  by  the  supervisors. 

92 


CONTRACT  WATER   RIGHTS 

(2)   Sale  of  Perpettial  Rights  to  Water 

The  number  of  companies  which  furnish  water 
on  the  payment  of  an  annual  rental  is  far  less  than 
the  number  of  those  which  dispose  of  water  by  the 
sale  of  perpetual  rights.  The  plan  of  such  compa- 
nies is  to  sell  perpetual  rights  enough  to  repay  the 
cost  of  construction,  and  make  annual  assessments 
to  pay  the  cost  of  operation  and  maintenance.  It 
has  been  the  prevailing  practice  of  such  companies 
to  begin  selling  rights  before  there  has  been  any 
judicial  or  other  determination  of  the  priority  or 
amount  of  their  rights,  and  sometimes  before  the 
canal  is  constructed,  the  rights  which  they  sell 
having  no  foundation  but  a  claim  of  an  appropri- 
ation equal  to  the  capacity  of  their  works.  The 
payment  for  such  a  perpetual  right  is  not  a  pay- 
ment for  water,  nor  for  an  interest  in  the  canal, 
but  for  a  right  to  obtain  water  through  the  canal. 
Theoretically,  the  right  of  the  canal  company  is 
based  on  a  beneficial  use  of  the  water,  and  this 
use  must  be  made  by  the  purchaser.  The  canal 
company  is,  therefore,  selling  something  which  it 
does  not  possess,  and  having  sold  it  still  retains 
all  that  it  had  before  such  sale,  —  its  canal,  the 
ownership  of  the  water  it  carries,  and  the  right  to 
operate  it. 

A  modification  of  this  plan  provides  that  when  a 
certain  number  of  rights  are  sold,  the  works  shall 
be  turned  over  to  the  holders  of  the  rights,  and 
stock  in  a  new  company  issued  in  place  of  the  old 

93 


IRRIGATION   INSTITUTIONS 

rights,  the  canal  to  be  the  property  of  the  new 
company.  In  such  a  case  the  charge  for  water 
rights  is  made  large  enough  to  repay  all  outlay 
and  a  profit  on  the  enterprise.  The  purchaser 
gets  an  inchoate  interest  in  the  canal,  which  is  to 
become  effective  at  some  indefinite  future  date. 

Owing  to  a  failure,  before  beginning  work,  to 
study  the  character  of  the  water-supply  and  the 
prior  rights  to  its  use,  and  owing  to  the  inability 
to  obtain  definite  information  on  this  subject,  many 
canals  have  been  built  which  have  no  warrant  for 
their  existence.  Their  appropriations  of  water  are 
practically  worthless  because  the  stream  is  con- 
trolled by  earlier  rights.  It  is  often  years  before 
the  managers  of  these  enterprises  understand  this 
situation  themselves.  In  the  meantime  settlers 
are  occupying  the  land  below  ditches  which  in 
time  will  be  absolutely  dry  during  a  large  part  of 
the  year.  As  a  rule,  purchasers  of  these  rights 
know  nothing  of  the  irrigation  laws  and  do  not 
realize  the  difference  between  the  value  of  an  early 
and  a  late  priority.  They  are  more  influenced  by 
the  character  of  the  land  and  the  terms  of  the  canal 
companies'  contracts  than  by  anything  they  learn 
of  water  titles.  As  a  result,  many  a  farmer  has 
lost  the  savings  of  years  in  the  purchase  of  rights 
in  paper  appropriations.  They  have  a  title  to 
water  in  the  records  of  the  court-house,  but  no 
share  in  the  supply  of  the  stream.  The  fact  that 
builders  of  these  works  were  often  as  ignorant  of 
the  dangers  before  them  as  those  to  whom  they 

94 


CONTRACT  WATER    RIGHTS 

gave  deeds  to  water,  alone  prevents  these  transac- 
tions from  being  fraudulent. 

Farmers  prefer,  as  a  rule,  purchasing  perpetual 
water  rights  to  securing  it  on  an  annual  rental. 
There  is  an  agreeable  sound  about  the  ownership 
of  a  perpetual  right.  It  gives  the  possessor  a  feel- 
ing of  security,  especially  if  he  is  from  the  East 
and  does  not  know  how  little  this  signifies.  A 
deed  to  a  perpetual  right  seems  a  security  against 
all  future  contingencies.  As  a  rule,  these  deeds 
provide  in  addition  that  the  company  shall  keep 
the  canal  in  good  order  and  repair,  so  he  not  only 
secures  what  seems  to  be  a  right  to  water,  but  a 
guarantee  of  its  delivery.  The  conditions  and 
reservations  which  so  vitally  affect  this  instrument 
and  the  uncertainty  about  the  ownership  of  the 
water  apparently  conveyed  are  all  matters  which 
are  brought  later  to  his  attention. 

Where  the  conditions  of  these  water  deeds  are 
equitable,  where  the  farmer  receives  as  much  con- 
sideration as  the  ditch  company,  and  where  the 
contracts  are  based  on  an  ample  water-supply, 
there  is  seldom  any  complaint  or  controversy,  but 
in  some  instances  the  contracts  are  exceedingly 
arbitrary  and  unjust  to  the  farmer.  Such  contracts 
have  not,  in  the  long  run,  worked  to  the  advantage 
of  ditch  companies.  Where  the  provisions  are  too 
severe  the  farmer  will  not  sign  them,  or,  if  he  does, 
he  is  always  in  a  state  of  unrest  and  rebellion. 
One  stipulation,  found  in  nearly  all  these  contracts, 
is  that  the  company  will  not  be  responsible  for  a 

95 


IRRIGATION    INSTITUTIONS 

shortage  occasioned  by  drouth  or  acts  of  Provi- 
dence. Another  is  that  in  times  of  scarcity  the 
water  which  is  available  shall  be  divided  pro  rata 
among  the  holders  of  water  contracts.  Few  canals 
carry  their  full  capacity  for  more  than  a  few  days 
during  the  season  and  what  the  purchaser  really 
buys  is  not  a  right  to  a  fixed  volume  of  water  but  a 
right  to  a  share  in  whatever  the  canal  can  furnish. 
The  number  of  water  rights  sold  from  each  canal, 
therefore,  has  almost  as  much  to  do  with  the 
farmer's  supply  as  the  volume  appropriated  from 
the  stream.  Many  contracts  contain  the  follow- 
ing :  "  It  is  agreed  that  the  number  of  water 
rights  that  may  be  sold  from  the  ditch  shall  be 
based  not  upon  present  decrees  granted  nor  upon 
any  decrees  that  may  be  granted  to  said  ditch,  but 
upon  the  estimated  practical  capacity  of  said  ditch 
system/'  Under  this  agreement  the  company  may 
build  a  canal  for  which  there  is  no  possible  water- 
supply  and  sell  rights  up  to  its  full  estimated  ca- 
pacity, and  still  be  relieved  from  any  liability  for 
damages. 

Some  of  the  distinctions  between  the  rights  of 
farmers  under  existing  contracts  and  what  they 
would  be  were  the  farmers  the  appropriators,  are 
pointed  out  below.  These  vary  somewhat  with 
different  contracts,  but  are,  as  a  rule,  matters  of 
minor  detail.  An  examination  of  hundreds  of 
these  contracts  shows  that  in  their  essential  fea- 
tures they  have  a  surprisingly  close  agreement.  If 
their  stipulations  are  compared  with  the  laws  gov- 

96 


CONTRACT  WATER   RIGHTS 

erning  appropriations  in  all  except  three   States, 
they  will  show  these  differences  :  — 

The  party  who  builds  a  ditch  is  not  restricted 
in  the  place  where  he  may  use  the  water  he  thereby 
acquires.  He  may  apply  it  to  one  tract  of  land 
one  year  and  to  another  tract  of  land  the  succeed- 
ing year,  and  sell  it  to  turn  the  wheels  of  a  factory 
the  third  year.  In  making  these  changes  he  does 
not  have  to  ask  the  approval  of  the  State  authori- 
ties nor  comply  with  any  legal  formalities.  It  is 
not  so  with  the  user  of  water.  When  he  purchases 
a  perpetual  water  right  he  is  given  no  such  free- 
dom. His  contract  always  describes  the  land 
where  the  water  is  to  be  used,  and  he  cannot 
change  it  from  that  land  without  the  consent  of 
the  ditch  company. 

The  canal  owner  acquires  a  right  to  a  continu- 
ous flow.  In  very  few  decrees  is  there  any  limita- 
tion imposed  on  the  time  of  diversion.  The  courts 
have  over  and  over  again  held  that  the  right  to  a 
continuous  flow  is  vested,  and  if  the  appropriator 
does  not  need  the  water  himself  he  can  sell  it  or 
rent  it  to  others.  But  the  farmer  who  has  to  buy 
the  water  he  need*  does  not  meet  with  such  liber- 
ality. In  hundreds  of  contracts  examined  the 
length  of  the  irrigation  period  is  always  stipulated. 
The  irrigator  is  required  to  close  his  head-gate 
when  the  water  is  not  needed,  and  in  some  cases 
the  appropriator  reserves  the  privilege  of  deter- 
mining whether  water  is  being  used  with  proper 
economy  and  skill. 

H  97 


IRRIGATION    INSTITUTIONS 

In  nearly  every  instance  the  maximum  amount 
of  water  which  will  be  allowed  an  acre  of  -land  is 
stipulated  in  the  contracts,  and  the  duty  thus 
assumed  is  nearly  always  higher  than  the  duty 
assumed  in  court  decrees. 

These  contrasts  have  not  been  pointed  out 
for  the  purpose  of  criticising  the  contracts.  Ex- 
actly the  reverse  is  true.  Experience  has  shown 
the  value  of  the  limitations  imposed  :  they  work 
no  hardship  to  the  irrigator,  and  should  have  been 
applied  to  the  original  appropriations.  If  the  irri- 
gator who  obtains  his  water-supply  under  a  con- 
tract has  his  right  attached  to  a  specific  tract  of 
land,  why  should  not  the  original  appropriation  be 
so  attached  ?  If  an  irrigator  has  to  close  his  head- 
gate  when  water  is  not  needed,  why  should  the 
original  appropriator  be  given  a  right  to  a  continu- 
ous flow  ? 

(3)    Cooperative  Canals 

The  latest  phase  of  irrigation  development  by 
corporate  capital  has  been  the  building  of  canals 
to  sell  outright  to  settlers  just  as  houses  are  built 
to  sell  to  the  dwellers  in  cities  and  towns.  As  a 
rule,  these  canals  are  operated  for  a  time  by  their 
builders,  but  are  turned  over  to  irrigators  to  be 
managed  by  them  as  cooperative  enterprises  as 
soon  as  a  certain  number  of  shares  has  been 
sold. 

The  most  successful  irrigation  works  in  Cali- 
fornia and  in  a  number  of  Western  States  belong 


CONTRACT  WATER  RIGHTS 

in  this  class.  All  of  the  canals  built  in  Wyoming 
and  Idaho,  under  the  provisions  of  the  Carey  Act, 
have  to  be  sold  outright  to  settlers,  so  that  the 
landowner  is  also  a  ditch-owner  and  arranges  for 
his  water  rights  with  the  State  authorities. 


CHAPTER  VI 

MEASUREMENT  OF  WATER 

THE  distribution  of  water  for  irrigation  is  attended 
by  many  perplexing  conditions.  Streams  vary  in 
volume  from  day  to  day.  Wells  which  cannot  be 
lowered  in  April  often  fail  in  August.  The  water- 
supply  is  subject  to  continued  waste  and  loss.  It 
sinks  through  the  bottom  of  canals  by  seepage, 
and  is  taken  up  by  the  air  through  evaporation. 

When  the  supply  was  abundant  and  the  acreage 
limited,  these  vicissitudes  were  of  small  importance, 
but  with  the  growing  use  of  water,  changes  in  meth- 
ods and  policies  are  necessary.  This  is  especially 
true  regarding  the  care  taken  in  its  measurement, 
and  in  the  attention  now  being  paid  to  the  contracts 
under  which  it  is  supplied  to  irrigators.  When 
streams  carried  more  than  was  needed,  water  was 
seldom  measured.  Canal  companies  took  what 
they  wanted,  and  the  irrigator  was  charged  for 
the  acres  irrigated  without  any  reference  to  how 
much  he  used.  This  was  like  furnishing  a  family 
with  groceries  at  so  much  per  head,  without  any 
limit  on  the  quantity  consumed  or  wasted.  The 
results  of  this  lavishness  do  not  warrant  its  con- 
tinuance. It  led  farmers  to  substitute  water  for 
cultivation,  and  to  injure  their  land  and  exhaust 
100 


MEASUREMENT   OF   WATER 

streams  by  wasteful  and  careless  methods.  The 
need  of  a  definite  unit  of  measurement  for  the 
commodity  bought  and  sold  is  now  manifest.  With- 
out this  there  can  be  no  satisfactory  basis  for 
transactions  in  water,  or  any  intelligent  or  certain 
measure  of  value  for  irrigation  properties. 

In  the  establishment  of  such  unit  several  things 
have  to  be  taken  into  account.  It  should  be  in  acn 
cordance  with  the  requirements  of  agriculture,  so 
that  the  quantities  to  be  measured  can  be  regu- 
lated by  simple  and  not  too  costly  devices,  and  be 
stated  in  a  unit  convenient  of  computation.  Any 
unit,  to  be  generally  adapted  and  enforced,  has  to 
be  both  feasible  in  operation  and  in  accord  with 
the  needs  or  prejudices  of  water  users.  Water  can- 
not be  delivered  to  irrigators  by  the  pound  or  ton. 
Measuring  water  to  irrigators  in  gallons  would  be 
like  selling  coal  to  railroads  by  the  ounce. 

Three  units  of  measurement  are  now  in  general 
use,  and  some  one  of  these  three  is  recognized  in 
the  laws  of  nearly  every  arid  State,  and  is  nearly 
always  stipulated  in  water  contracts.  They  are 
the  inch,  the  cubic  foot  per  second,  and  the  acre-foot. 

In  the  measurement  of  water  for  irrigation  there 
are  two  distinct  principles  involved  which  it  is  de- 
sirable to  have  clearly  defined  and  to  keep  separate 
in  the  mind.  The  first  is  the  unit  of  volume  to  be 
employed,  wholly  apart  from  the  method  by  which 
this  unit  may  be  measured  in  actual  practice.  Thus, 
in  irrigation,  if  we  say  that  the  unit  of  measure  is 
the  cubic  foot  per  second,  the  character  and  volume 
101 


IRRIGATION   INSTITUTIONS 

of  the  unit  are  not  affected  whether  water  is  meas- 
ured by  the  flow  over  a  weir  or  through  a  flume, 
or  by  the  strokes  of  a  pumping  engine.  The  unit 
may  sometimes  be  the  quantity  of  water  which 
issues  from  an  opening  of  fixed  dimensions,  with 
or  without  pressure,  or  the  unit  may  be  the  acres 
of  land  irrigated  under  certain  conditions. 

The  Inch 

In  some  cases,  however,  the  unit  of  measure- 
ment is  associated  with  a  special  device  or  instru- 
ment by  which  it  is  to  be  actually  determined. 
The  form  of  this  apparatus  should  be  in  accord 
with  the  principles  of  hydraulics,  and  be  deter- 
mined by  scientific  considerations.  "The  inch" 
is  such  a  unit  of  measurement ;  it  has  to  be  asso- 
ciated with  some  particular  device  or  instrument 
of  measurement.  Its  use  is  as  old  as  irrigation. 
In  this  country  it  is  older  than  modern  irrigation, 
having  been  first  used  by  the  placer  miner  and 
borrowed  from  him  by  the  irrigator.  In  both 
mining  and  irrigation  it  is  the  volume  of  water 
which  will  flow  through  an  inch-square  orifice 
under  a  uniform  and  designated  pressure.  The 
shape  and  size  of  the  orifice  and  the  pressure 
upon  it  are  fixed  by  law  in  a  number  of  States, 
and  in  others  regulated  by  custom. 

The  ruling  custom  in  the  United  States  is  to 
have  the  orifice  through  which  water  is  delivered 
6  inches  in  height  and  wide  enough  to  deliver  the 
required  number  of  inches.  The  pressure  on  this 

IO2 


MEASUREMENT   OF   WATER 

orifice  varies  from  4  inches  above  the  centre  in 
some  places  to  6  inches  above  the  top  in  others. 
In  Nevada  the  inch  has  sometimes  an  opening  4 
inches  in  height,  with  a  pressure  of  6  inches  above 
the  top. 

Water  sold  by  the  inch  by  any  individual  or  corporation 
shall  be  measured  as  follows,  to  wit :  Every  inch  shall  be  con- 
sidered equal  to  an  inch-square  orifice  under  a  five-inch  press- 
ure, and  a  five-inch  pressure  shall  be  from  the  top  of  the  orifice 
of  the  box  put  into  the  banks  of  the  ditch,  to  the  surface  of  the 
water ;  said  boxes,  or  any  slot  or  aperture  through  which  such 
water  may  be  measured,  shall  in  all  cases  be  six  inches  per- 
pendicular, inside  measurement,  except  boxes  delivering  less 
than  twelve  inches,  which  may  be  square,  with  or  without 
slides;  all  slides  for  the  same  shall  move  horizontally  and 
not  otherwise  ;  and  said  box  put  into  the  banks  of  ditch  shall 
have  a  descending  grade  from  the  water  in  ditch  of  not  less 
than  one-eighth  of  an  inch  to  the  foot.  —  (General  Statutes 
of  Colorado,  1883,  Sec.  3472.) 

Irrigators  who  are  not  able  to  compute  the 
quantity  of  water  flowing  over  weirs  or  through 
flumes  as  a  rule  prefer  to  have  their  water 
measured  by  the  inch.  They  can  tell  by  look- 
ing, or  believe  they  can,  whether  or  not  the 
quantity  contracted  for  is  being  delivered,  and 
where  the  conditions  prescribed  by  the  statute, 
as  given  in  the  law  quoted,  are  complied  with, 
they  can  tell  with  a  close  approximation  to  the 
truth  whether  or  not  they  get  what  they  pay 
for. 

The  most  serious  objection  to  this  unit  is  the 
name.  Men  accustomed  to  square  inches  and 

103 


IRRIGATION    INSTITUTIONS 


cubic  inches  confuse  these  with  miner's  and 
statute  inches.  Because  of  this  confusion,  they 
frequently  determine  the  inches  of  water  being 
furnished  them  by  ascertaining  the  number  of 
square  inches  in  the  cross-section  of  their  ditch 
or  lateral,  and  calling  this  the  number  of  inches 
of  water  received,  although  in  doing  so  they  dis- 
regard both  the  absence  of  an  orifice,  the  pressure 


' 
' 


FlG.  i.  —  Measuring  Stream  by  Miner's  Inch. 

upon  it,  and  the  grade  or  velocity  of  the  stream 
measured. 

It  is  the  common  practice  on  many  streams  in 
Utah  for  the  water  masters  to  measure  the  inches 
of  water  in  the  ditches  by  taking  the  cross-section 
of  their  flow  and  wholly  disregarding  pressure  and 
velocity.  A  territorial  water  law,  —  now  repealed, 
—  in  defining  how  water  should  be  measured, 
described  the  inch  in  one  paragraph  as  a  cubic 
inch  and  in  a  succeeding  paragraph  as  a  miner's 
inch. 

104 


MEASUREMENT   OF   WATER 

A  simple  device  for  measuring  miner's  inches 
is  shown  in  Fig.  i.  The  illustration  represents 
a  board  2  inches  thick,  12  inches  wide,  and  about 
8  feet  long.  The  opening  is  I  inch  wide  and  50 
inches  long,  and  the  distance  from  the  top  of  the 
board  to  the  centre  of  the  opening  is  exactly  4 
inches  on  the  up-stream  side.  On  the  down-stream 
side  the  opening  is  bevelled  so  that  the  hole  pre- 
sents sharp  edges  to  the  stream.  A  sliding  board 
is  hung  upon  the  top  of  the  first  board  with  a  strip 
screwed  along  its  upper  edge,  this  sliding  board 
being  wide  enough  to  cover  the  opening  on  the 
up-stream  side.  In  the  slot  there  is  a  closely  fit- 
ting block  made  to  slide  on  the  bevelled  edges 
and  fastened  by  a  screw  to  the  sliding  board. 
When  the  sliding  board  is  moved  backward  or  for- 
ward, by  means  of  its  end,  which  is  extended  for 
a  handle,  the  block  moves  in  the  slot  and  deter- 
mines the  length  of  the  opening. 

When  used  to  determine  the  flow  of  a  stream, 
the  board  is  placed  as  shown  in  the  figure,  so  as 
to  dam  the  flow  completely,  and  the  sliding  board 
is  moved  backward  or  forward  until  the  water  is 
all  passing  through  the  slot,  the  water  being  kept 
to  the  top  of  the  board,  or  4  inches  above  the 
centre  of  the  opening.  The  length  of  the  open- 
ing measures  the  number  of  miner's  inches  of 
water  flowing  through.  If  the  flow  is  too  great  to 
pass  through  the  opening  I  inch  wide,  the  open- 
ing may  be  made  wider,  the  water  still  to  be  kept 
4  inches  above  the  centre  of  the  opening. 


IRRIGATION    INSTITUTIONS 

Many  measuring  boxes  on  European  canals  are 
constructed  in  the  most  substantial  manner  of 
masonry.  The  orifice  is  cut  through  stone,  with 
edges  of  metal,  and  with  the  utmost  precision  in 
its  dimensions.  Thus  far,  in  this  country,  but 
little  attention  has  been  paid  to  accuracy,  either 
in  the  form  or  size  of  openings,  although  much 
ingenuity  has  been  shown  in  designing  automatic 
regulators.  The  prevailing  practice  in  the  West 
is  to  make  the  measuring  boxes  of  wood,  and  to 
give  slight  regard  either  to  the  freedom  of  delivery 
or  to  securing  uniform  pressure.  One  of  the  rea- 
sons why  no  more  consideration  has  been  given 
to  the  accuracy  of  measuring  devices  is  the  fact 
that  the  conditions  of  water  contracts  are  so  often 
not  in  accord  with  the  way  water  has  to  be 
used. 

The  field  of  usefulness  of  the  inch  is  restricted 
to  the  measurement  of  comparatively  small  quan- 
tities of  water.  It  is  well  adapted  to  the  distribu- 
tion of  water  to  irrigators  from  canals,  or  from  the 
main  laterals  of  canals,  but  it  is  not  suited  to  the 
measurement  of  rivers  or  to  the  distribution  of 
water  from  a  river.  Where  large  volumes,  or 
widely  fluctuating  volumes,  are  to  be  measured, 
the  construction  of  a  satisfactory  device  for  meas- 
uring by  inches  is  not  practical.  There  are  a  num- 
ber of  canals  in  this  country  which  carry  from 
50,000  to  125,000  statutory  inches.  It  is  manifest 
that  while  the  width  of  an  orifice  can  be  extended 
indefinitely,  without  materially  affecting  the  ac- 

106 


MEASUREMENT  OF   WATER 

curacy  of  the  measurement,  every  change  in  its 
depth  must  materially  increase  the  velocity,  and 
hence  the  quantity  of  water  discharged  by  each 
square  inch  of  its  cross-section.  Nearly  all  of  the 
statutes  prescribe  a  maximum  depth  for  the  orifice, 
and  require  that  increase  in  volume  delivered  shall 
be  secured  by  extending  its  length.  To  measure 
the  water  required  to  fill  the  Del  Norte  Canal, 
under  the  conditions  prescribed  by  the  Colorado 
Statute,  would  require  an  opening  1736  feet  in 
length,  which  would  be  practically  impossible. 

The  limitations  of  mechanical  devices  render 
the  inch  unsuited  to  measuring  the  flow  of  rivers. 
In  States  where  the  inch  is  recognized  as  the  legal 
unit  in  the  distribution  of  water  among  irrigators, 
some  other  has  to  be  employed  in  the  measurement 
of  the  flow  of  streams. 

Cubic  Foot  per  Second 

The  cubic  foot  per  second  has  come  into  general 
use  as  the  unit  of  volume  for  gauging  and  di- 
viding rivers,  and  in  measuring  the  flow  of  ditches 
and  canals.  Nearly  all  of  the  arid  States  and 
Territories  have  made  it  the  legal  unit  in  water  con- 
tracts and  for  defining  the  amounts  of  appropria- 
tions from  streams.  It  has  the  double  advantage 
of  precision  in  statement,  of  being  well  adapted  to 
the  measurement  of  large  as  well  as  small  volumes 
of  flowing  water,  and  of  permitting  the  employ- 
ment of  varied  methods  of  measurement.  In 

107 


IRRIGATION    INSTITUTIONS 

many  States  it  is  used  in  connection  with  the  inch 
The  flow  of  the  stream  and  the  amounts  of  appro- 
priations are  stated  in  cubic  feet  per  second.  The 
water,  after  it  is  turned  into  ditches,  is  measured 
out  to  farmers  in  inches.  This  renders  it  desirable 
that  there  should  be  some  basis  of  comparison, 
some  legally  defined  ratio  between  the  inch  and 
the  cubic  foot  per  second. 

A  number  of  States  have  passed  laws  fixing  the 
number  of  inches  which  equal"  a  cubic  foot  per 
second.1  Legislation  fixing  this  ratio  has  been  of 
decided  service  in  the  States  where  the  inch  is  still 
employed. 

The  following  is  the  ratio  assumed  by  law  or 
custom  in  a  number  of  States  :  — 

Colorado,  one  cubic  foot  per  second  equals  38.4  statute  inches 
Montana,  one  cubic  foot  per  second  equals  40  statute  inches 
Idaho,  one  cubic  foot  per  second  equals  50  miner's  inches 
Arizona,  one  cubic  foot  per  second  equals  40  miner's  inches 
Nevada,  one  cubic  foot  per  second  equals  50  miner's  inches 
Utah,  one  cubic  foot  per  second  equals  50  miner's  inches 

In  many  places  the  inch  is  retained  as  a  term 
where  it  has  no  existence  in  fact.  The  farmers 
who  have  been  accustomed  to  estimating  the  flow 
of  water  in  inches  find  it  hard  to  think  of  this  flow 
in  cubic  feet  per  second.  Because  of  this  engineers 

1  Statutes  of  California  (approved  March  23,  1901),  Sec.  I. 
The  standard  miner's  inch  of  water  shall  be  equivalent  or  equal  to 
one  and  one-half  cubic  feet  of  water  per  minute,  measured  through 
any  aperture  or  orifice. 

108 


MEASUREMENT   OF   WATER 

who  measure  the  flow  of  ditches  or  canals  in  cubic 
feet  per  second  convert  this  into  inches  according 
to  the  statutory  ratio.  On  many  ditches  where  the 
inch  is  still  retained  as  the  unit  of  measurement 
there  is  no  measuring  box  for  its  delivery.  Farmers 
pay  for  their  water-supply  in  inches,  and  estimate 
the  flow  in  their  laterals.  Where  the  water  is 
measured,  the  volume  is  determined  in  cubic  feet 
per  second  and  converted  into  inches  on  some 
arbitrary  ratio.  The  real  unit  is  the  cubic  foot 
per  second. 

The  Acre-foot 

The  inch  and  the  cubic  foot  per  second  are  units 
of  volume  of  flowing  water.  When  the  flow  of  a 
stream  can  be  stored  and  the  water  can  be  used  as 
desired,  the  aggregate  discharge  and  the  total  re- 
quirements of  crops  must  be  ascertained,  and  a  unit 
of  quantity  is  needed.  This  has  led  to  the  adoption 
of  the  acre-foot  as  a  unit  of  measurement.  It  is 
the  quantity  of  water  required  to  cover  an  acre  to  a 
depth  of  one  foot,  or  43,560  cubic  feet.  The  dis- 
charge of  a  stream  in  cubic  feet  per  second  is 
easily  convertible  into  acre-feet,  since  one  cubic 
foot  per  second  flowing  constantly  for  24  hours 
equals  approximately  2  acre-feet. 


109 


IRRIGATION   INSTITUTIONS 


The  Irrigating  Stream 

The  "irrigating  stream"  is  a  unit  in  common 
use  in  Utah.  It  is  a  stream  which  one  man  can 
control  to  advantage,  but  no  rules  for  its  measure- 
ment have  ever  been  prescribed.  The  size  of  the 
stream  is  left  to  the  water  masters,  who  are  charged 
with  distributing  water  to  the  farmers.  The  fol- 
lowing extract  from  a  notice  sent  out  by  a  Utah 
canal  company  illustrates  the  use  of  this  unit :  — 

"  Each  share  of  stock  will  entitle  the  owner  to  the  use  of 
what  is  commonly  called  '  an  irrigating  stream,'  for  seventeen 
hours. 

"  The  books  of  the  company  show  that  you  are  the  owner 
of  shares  of  stock,  and  you  will  therefore  be  entitled 

to  the  use  of  an  « irrigating  stream '  for  hours." 

The  water  in  this  canal  is  not  measured,  nor 
are  the  diversions.  The  water  master  estimates 
the  number  of  "  streams  "  in  his  canal,  and  these 
streams  are  used  in  turn  by  the  farmers.  They 
are  supposed  to  be  equal,  but  the  measurements 
given  in  the  following  table  show  how  far  they 
come  from  being?  so.  These  measurements  were 
made  to  determine  the  accuracy  of  the  judgment 
of  the  water  master.  Some  of  the  laterals  measured 
were  carrying  more  than  one  stream,  but  in  the 
table  all  have  been  reduced  to  the  same  basis  for 
convenience  in  comparison:  — 


no 


MEASUREMENT   OF   WATER 


MEASUREMENT  OF  WATER  DELIVERED  BY  CANALS  IN 
UTAH,  JULY  17,  1900 


Canal  No.  i 

Canal  No.  2 

Number  of  shares 
represented  by 
water  delivered 

Quantity  of  water 
flowing  through 
orifice 

Number  of  shares 
represented  by 
water  delivered 

Quantity  of  water 
flowing  through 
orifice 

Cu.  ft.  per  sec. 
1.96 
2.  02 

Cu.  ft.  per  sec. 
I.4O 
.89 

3.12 
.89 
.78 

.52 
•03 
•63 

•47 
.62 

•55 

•54 
.85 
2.46 

.64 
2.31 
i-55 

2.54 
1.67 

. 

1.03 

Each  shareholder  represented  in  the  above  meas- 
urements paid  the  same  amount  of  money,  but  they 
were  far  from  receiving  the  same  quantity  of  water, 
under  canal  No.  I  the  most  generous  box  delivering 
nearly  four  times  the  amount  of  the  one  having  the 
least  discharge.  Under  canal  No.  2  the  fortunate 
irrigator  received  nearly  three  times  as  much  water 
as  the  irrigator  who  received  the  least  for  his  money. 

The  amount  of  money  paid  for  water  each  year 
by  irrigators  is  so  large  that  it  seems  surprising 
that  they  have  not  paid  more  attention  to  the  ac- 

iii 


IRRIGATION   INSTITUTIONS 

curacy  with  which  it  is  measured.  In  transactions 
involving  any  other  kind  of  property,  care  is  taken 
to  see  that  it  is  accurately  measured  ;  but,  although 
water  costs  more  than  any  other  commodity  used 
by  the  irrigator,  it  is  bought  and  paid  for  without 
either  buyer  or  seller  knowing  how  much  is 
delivered. 

The  need  of  greater  accuracy  in  water  measure- 
ment has  led  to  the  passage  of  a  law  in  Utah 
requiring  the  State  engineer  to  give  information 
and  advice  about  the  placing  of  measuring  devices.1 
The  State  engineers  of  Colorado  and  Wyoming 
are  required  to  advise  irrigators  in  respect  to  the 
measurement  of  water,  and  a  recent  Colorado 
statute2  also  provides  for  the  use  of  registers 

1  Revised  Statutes  of  Utah,  1898. 

1282.  Unit  of  Measurement.     The  standard  unit  of  measurement 
for  flowing  water  shall  be  the  continuous  flow  of  one  cubic  foot  per 
second  of  time  and  shall  be  known  as  the  second-foot. 

1283.  Id.   Acre-foot.     The  volume  of  water  required  to  cover 
one  acre  to  the  depth  of  one  foot  shall  be  known  as  the  acre-foot 
and  is  equivalent  to  forty-three  thousand  five  hundred  and  sixty 
cubic  feet. 

2457.  To  give  information  as  to  measurements  of  water.  The 
State  engineer  shall,  free  of  charge,  give  any  information  desired 
by  any  person  as  to  the  proper  method  of  measuring  water  or  of 
constructing  an  apparatus  for  such  measurement  upon  proper 
application  being  made  ;  and  shall  give  special  instructions  to  all 
water  masters  as  to  measurements  of  water,  so  as  to  secure  a  just 
distribution  of  the  same. 

2  Session  Laws  of  Colorado,  1897.     An  Act  to  provide  for  and 
to  regulate  the  exchange  of  water  between  reservoirs  and  ditches 
and  the  public  streams. 

Sec.  2.  Any  person    or    company  transferring   water   from   one 
112 


MEASUREMENT   OF   WATER 

which  will  keep  a  continuous  record  of  the  quan- 
tity of  water  delivered.  (Plate  I.) 

The  diagram  (Plate  II.)  was  taken  from  one  of 
these  registers.  The  flow  delivered  was  supposed 
to  be  a  constant  one.  Had  this  been  true,  the 
heavy  line  across  the  register  sheet  would  have 
been  straight.  The  diagram  shows  how  far  it 
varied  from  this. 

The  introduction  of  registers  and  greater  accu- 
racy in  the  construction  of  measuring  boxes  is  one 
of  the  developments  of  the  near  future.  Their  in- 
stallation will  do  much  to  reform  water  contracts, 
prevent  the  awarding  of  excessive  amounts  of 
water  in  decrees,  promote  economy  and  efficiency 
in  use,  and  extend  the  reclaimed  area. 

public  stream  to  another  shall  be  required  to  construct  and  main- 
tain under  the  direction  of  the  State  engineer  measuring  flumes  or 
weirs  and  self-registering  devices  at  the  point  where  the  water 
leaves  its  natural  watershed  and  is  tumed  into  another,  and  also  at 
the  point  where  it  is  finally  diverted  for  use  from  the  public  stream. 
Sec.  4.  When  the  rights  of  others  are  not  injured  thereby,  it 
shall  be  lawful  for  the  owner  of  a  reservoir  to  deliver  stored  water 
into  a  ditch  entitled  to  water  or  into  the  public  stream  to  supply 
appropriations  from  said  stream,  and  take  in  exchange  therefor 
from  the  public  stream  higher  up  an  equal  amount  of  water,  less  a 
reasonable  deduction  for  loss,  if  any  there  be,  to  be  determined  by 
the  State  engineer.  Provided,  that  the  person  or  company  desiring 
such  exchange  shall  be  required  to  construct  and  maintain  under 
the  direction  of  the  State  engineer  measuring  flumes  or  weirs  and 
self-registering  devices  at  the  point  where  the  water  is  turned  into 
the  stream  or  ditch  taking  the  same  or  as  near  such  point  as  is 
practicable. 


IRRIGATION    INSTITUTIONS 


114 


MEASUREMENT   OF  WATER 


CHAPTER  VII 
THE  DUTY  OF  WATER 

THE  duty  of  water  in  irrigation  is  the  area  of 
crop  which  can  be  matured  with  a  given  volume. 
Every  one  who  has  to  do  with  irrigation  needs  a 
knowledge  of  the  conditions  which  control  this. 
Without  this  knowledge,  neither  the  party  who 
furnishes  water  nor  the  irrigator  who  uses  knows 
how  much  will  be  needed,  when  it  will  be  needed, 
or  how  it  should  be  delivered  to  secure  the  best 
results.  An  approximate  knowledge  of  the  duty 
of  water  is  as  necessary  in  the  distribution  of  water 
in  irrigation  as  a  unit  of  value  in  finance  and 
trade.  In  the  absence  of  such  standard,  it  has 
often  happened  that  serious  mistakes  have  been 
made  in  fixing  the  dimensions  of  canals,  usually 
in  the  direction  of  making  them  too  small.  Water 
contracts  have  been  framed  which  do  not  conform 
to  irrigators'  necessities,  and  fail  to  secure  either 
the  economic  distribution  or  best  results  from  the 
water-supply. 

The  duty  of  water  varies  greatly  and  must  of 
necessity  do  so.  It  depends  in  part  on  the  economy 
and  skill  or  negligence  and  waste  which  governs 
its  distribution.  It  varies  with  the  crop ;  oats 
requires  more  water  than  corn ;  alfalfa,  more  than 
116 


THE   DUTY   OF  WATER 

potatoes ;  cultivated  crops,  as  a  rule,  require  less 
than  uncultivated  crops.  Not  only  do  different 
crops  require  different  amounts  of  water,  but  they 
require  it  at  different  seasons  of  the  year.  During 
the  first  part  of  the  season  streams  in  the  northern 
part  of  the  arid  region  have  an  abundance  of  water, 
and  crops  which  can  be  matured  then  rarely  suffer 
from  drouth.  On  the  other  hand,  crops  which 
require  late  irrigation  must  be  watered  when  the 
supply  is  scarce  and  valuable.  The  time  of  irriga- 
tion has  as  much  to  do  with  the  area  which  can  be 
irrigated  by  direct  diversion  from  a  river  as  the 
amount  required  for  different  crops.  For  this 
reason,  nearly  all  streams  will  irrigate  more  acres 
of  small  grain  than  of  potatoes,  because  water  is 
used  when  the  supply  is  abundant. 

In  determining  the  duty  of  water,  it  is  manifest 
that  if  water  is  applied  sparingly  it  will  cover  a 
larger  area,  and  if  applied  freely,  fewer  acres  can 
be  served.  The  limit  of  profitable  economy  is  to 
use  the  least  quantity  of  water  necessary  to  secure 
the  best  yield.  In  the  West  there  are  many  rea- 
sons for  endeavoring  to  reach  this  limit,  if  not  to 
go  somewhat  beyond  it.  Under  the  highest  duty 
which  can  ever  be  secured  not  more  than  10  per 
cent  of  the  arid  West  can  ever  be  reclaimed.  A 
higher  duty  of  water,  which  will  increase  the 
watered  area,  will,  therefore,  add  to  the  value  of 
the  water-supply  and  to  investments  in  irrigation 
works,  and  render  large  areas  of  land  productive 
which  are  now  arid  and  unused. 
117 


IRRIGATION    INSTITUTIONS 

The  duty  of  water  is  variously  stated.  When 
the  flow  of  a  stream  is  not  stored,  and  the  water 
must  be  used  as  it  comes  down  from  the  snows, 
duty  is  properly  expressed  in  a  unit  of  flowing 
water,  either  the  inch  or  the  cubic  foot  per  second. 
In  the  earlier  discussions  of  the  duty  of  water,  the 
influence  of  the  stored  water  was  disregarded,  and 
as  a  result  the  statements  are  nearly  always  made 
in  terms  of  continuous  flow.  It  was  assumed  that 
an  inch  or  cubic  foot  per  second  of  water  flowing 
continuously  was  required  for  the  irrigation  of  a 
unit  area  of  land  and  the  total  area  that  the  stream 
would  serve  was  determined  by  dividing  its  dis- 
charge by  this  assumed  duty ;  but  to  express  the 
total  volume  of  water  used  in  irrigating  an  acre  of 
land  in  any  unit  of  flowing  water  it  is  necessary  to 
give  not  only  the  rate  of  delivery,  but  the  length  of 
time  this  continues,  or  to  do  what  amounts  to  the 
same  thing,  state  it  in  a  unit  of  quantity  such  as  the 
acre-foot.  This  practice  has  recently  been  adopted, 
but  it  is  usual  to  give  the  number  of  acre-feet 
of  water  used  on  an  acre  of  ground.  This  is  in 
reality  the  reciprocal  of  the  duty,  but  is  a  more 
convenient  form  than  to  give  the  fraction  of  an 
acre  which  is  watered  with  one  acre-foot.  It  is 
also  equivalent  to  a  statement  of  the  depth  of 
water  used  on  the  land,  and  can  thus  be  easily 
comprehended  by  all. 

The  use  of  the  inch  and  the  cubic  foot  per 
second  still  continues,  however,  even  when  it  is 
desired  to  state  the  entire  quantity  of  water  re- 
1x8 


THE   DUTY   OF   WATER 


ceived  by  crops  during  the  season.     In  such  cases 
it  is  necessary  to  know  the  length  of  time  water 


:  DURATION  OF  IRRIGATION  PERIOD  ON  MAIN  CANALS  INCLUOIO  IN  In  VESTIC  AT  IONI 


•  TATS  MAMB  OP  CANAL 


DURATION  OP  IRRIGATION    PERIOD  IN  OAV8 


DIAGRAM  SHOWING  DURATION  or  IRRIGATION  ON  FARM*  WHERE  WATER  WAS  MKAtUMlo  IN  II 


OAT*.  WtUATLAM 


DiAOftAMft  SHOWING  LENGTH  OF  IRRIGATION  SEASON. 
FIG.  2. 

is  used  and  to  include  in  the  statement  so  many 

details  that  it  is  confusing.     The  common  practice 

in  making  comparison  is  either  to  disregard  the 

119 


IRRIGATION   INSTITUTIONS 

time  element  or  to  make  an  arbitrary  assump- 
tion as  to  the  length  of  season.  Neither  form  of 
statement  is  satisfactory.  The  accompanying  dia- 
gram (Fig.  2)  shows  the  variations  in  the  length  of 
the  irrigating  season  in  different  parts  of  the  West. 

In  Montana  the  irrigation  period  is  less  than 
one  hundred  days  and  in  Southern  California  it  is 
between  two  hundred  and  three  hundred  days. 
Manifestly,  a  duty  based  on  the  inch  of  water  for 
the  irrigation  period  in  these  two  sections  involves 
the  use  of  entirely  different  quantities  on  a  single 
acre,  the  irrigator  in  California  who  purchases  an 
inch  receiving  more  than  twice  as  much  water  as 
the  irrigator  of  Montana. 

In  determining  the  area  which  can  be  irrigated 
by  a  given  quantity  of  water  regardless  of  the  rate 
of  its  delivery,  the  acre-foot  is  the  most  convenient 
and  definite  unit  of  quantity.  Where  it  is  taken 
as  the  standard,  all  arbitrary  assumptions  involved 
in  the  use  of  either  the  inch  or  cubic  foot  per 
second  are  avoided.  It  is  equally  accurate  whether 
the  supply  comes  from  streams,  wells,  or  reservoirs, 
whether  the  use  is  continuous  or  intermittent,  and 
whether  it  ends  in  two  months  or  extends  through- 
out the  entire  twelve.  It  has,  therefore,  been  em- 
ployed wherever  possible  in  the  discussion  which 
follows.  Those  who  wish  to  convert  quantities 
expressed  in  acre-feet  into  equivalent  values  in 
inches  or  cubic  feet  per  second  need  only  to  remem- 
ber that  a  cubic  foot  per  second  flowing  for  twenty- 
four  hours  equals  approximately  2  acre-feet,  and 
120 


THE   DUTY   OF  WATER 

that  the  miner's  or  statute  inch  flowing  for  a  like 
period  equals  between  .04  and  .05  acre-foot,  de- 
pending on  the  form  of  inch  employed. 

In  the  mining  States  the  inch  is  the  unit  most 
frequently  employed.  In  California  the  common 
form  of  stating  the  duty  of  water  is  the  area  which 
an  inch  will  irrigate.  In  that  State  the  ruling  duty 
is  five  acres  to  an  inch,  but  in  some  instances  it 
irrigates  ten  acres.  In  a  majority  of  the  Rocky 
Mountain  States  a  duty  of  one  inch  to  the  acre 
was  the  ruling  standard  at  the  outset,  but  an  inch 
to  three  acres  is  now  more  nearly  in  accord  with 
custom.  A  series  of  measurements  of  the  quantity 
of  water  used,  made  by  the  late  Colonel  E.  S. 
Nettleton,  one  of  the  leading  irrigation  engineers 
of  Colorado,  made  fifty-four  acres  the  duty  of  one 
cubic  foot  per  second,  and  this  became  the  ruling 
standard  in  the  earlier  water-right  contracts  of 
Colorado  and  adjacent  States.  This  duty  was  based 
on  measurements  made  on  land  which  had  been 
irrigated  only  a  short  time  and  where  a  large 
amount  of  water  was  required  to  saturate  the  sub- 
soil. It  is  now  much  below  the  actual  practice  of 
irrigators. 

Much  attention  is  now  being  paid  to  this  subject. 
The  Agricultural  Experiment  Stations  of  the  West 
are  doing  valuable  work  both  in  measuring  the 
amount  of  water  used  and  in  giving  to  farmers  in- 
struction in  better  methods  of  application  to  crops. 
In  the  reports  of  the  Irrigation  Investigations  of 
the  Office  of  Experiment  Stations,  United  States 

121 


IRRIGATION   INSTITUTIONS 

Department  of  Agriculture,  are  gathered  together 
the  results  of  observations  made  in  all  parts  of  the 
arid  region  by  a  large  number  of  engineers,  farmers, 
and  scientists.  The  data  gathered  show  wide  vari- 
ation in  individual  cases,  the  water  used  on  farms 
varying  from  1 5  acre-feet  to  an  acre,  to  less  than 
I  acre-foot  to  the  acre,  but  a  careful  study  of  the 
surrounding  conditions  in  every  case  serves  to  dis- 
close the  reasons.  While  they  show  the  necessity 
for  care  in  making  generalizations,  there  is  every 
reason  to  believe  that  they  will  result  in  two  im- 
portant gains  to  irrigation  practice.  One  will  be 
the  establishment  of  an  approximate  standard  for 
the  duty  of  water  when  measured  at  the  heads  of 
canals.  The  other  is  the  raising  of  that  standard 
by  showing  the  causes  of  waste  and  loss.  The  ex- 
tent of  the  losses  in  distribution,  for  example,  gives 
room  for  confidence  that  the  average  duty  of  water 
in  the  West  can  in  time  be  made  nearly  double 
what  it  is  now  without  any  sacrifice  in  the  produc- 
tive capacity  of  the  areas  irrigated.  It  must  be 
remembered  that  this  applies  only  to  the  average 
result.  There  are  sections  of  the  West,  notably 
Southern  California,  where  water  is  probably  used 
with  more  economy  and  skill  than  in  any  other 
part  of  the  world ;  but  the  methods  of  Southern 
California  can  be  widely  adopted  elsewhere,  and 
the  fact  that  the  duty  there  is  nearly  double  that 
of  other  localities  having  the  same  climatic  con- 
ditions gives  added  reason  for  belief  in  a  general 
gain  elsewhere. 

122 


THE   DUTY   OF  WATER 

The  duty  of  water  as  measured  at  the  heads  of 
canals  is  the  standard  which  must  be  used  for  the 
division  of  water  from  streams.  The  average  of  a 
large  number  of  measurements  made  by  the  Irri- 
gation Investigations  of  the  United  States  Depart- 
ment of  Agriculture  during  the  past  three  years 
was  4.45  acre-feet  for  each  acre  of  land  irrigated. 
Measurements  made  at  the  margin  of  fields  showed 
an  average  of  2.37  acre-feet  for  each  acre  irrigated, 
or  but  little  more  than  one-half  of  the  water  turned 
into  the  canals. 

Losses  from  Seepage  and  Evaporation 

The  variation  in  the  water  lost  from  different 
canals  and  in  different  sections  of  the  same  canal 
is  so  great  that  few  generalizations  can  be  made. 
Each  canal  needs  to  be  measured  in  order  that  its 
owners  may  know  the  need  of  improvement  and 
what  they  must  do  to  make  this  most  effective. 
The  loss  from  seepage  and  evaporation,  as  shown 
by  a  large  number  of  measurements  made  by  the 
Irrigation  Investigations  of  the  United  States  De- 
partment of  Agriculture,  was  2.47  per  cent  per 
mile  in  1900,  and  1.45  per  cent  per  mile  in  1901. 
Grouping  these  measurements  together  on  the 
basis  of  the  volume  of  water  carried  at  the  time  of 
the  measurement  showed  that  the  losses  in  small 
ditches  are  far  greater  than  in  large  canals,  as  is 
illustrated  by  the  following  table :  — 


123 


IRRIGATION   INSTITUTIONS 
WATER  LOST  BY  CANALS 

Loss  per  mile,  per  cent 

Canals  carrying  100  cubic  feet  per  second  or  more  .  .  .98 
Canals  carrying  between  50  and  100  cubic  feet  per  second  2.67 
Canals  carrying  between  25  and  50  cubic  feet  per  second  5.22 
Canals  carrying  less  than  25  cubic  feet  per  second  .  .  7.48 

Indian  experience  shows  that  losses  in  canals  of 
from  30  to  40  per  cent  are  not  uncommon.  A  loss 
of  50  per  cent  in  distribution  is  in  accord  with 
many  of  the  measurements  made  elsewhere.  In 
the  irrigation  of  wheat  under  the  Jamda  Canal  in 
Bombay,  5.6  acre-feet  was  received  at  the  head- 
gate  for  every  acre  of  land  cultivated  under  the 
canal,  but  measurements  made  at  the  margins  of 
fields  showed  in  two  cases  2.1  acre-feet,  and  1.4 
acre-feet,  respectively,  for  the  acres  irrigated. 
Extensive  experiments  on  the  Hathmati  Canal  in 
the  same  country  showed  losses  from  seepage  and 
evaporation  of  fully  50  per  cent.  The  losses  from 
the  new  canals  in  the  West  ought  to  be  equal  to  or 
greater  than  those  of  older  irrigated  countries,  both 
because  the  canals  are  new  and  the  banks  unset- 
tled, and  because  little  care  has  been  taken  to 
secure  economy  in  the  delivery  of  water. 

The  term  "seepage,"  in  its  broader  sense,  includes 
the  water  percolating  through  the  soil  from  all 
sources,  but  in  its  narrower  sense  it  is  restricted 
to  the  water  which  escapes  from  ditches.  The 
losses  from  the  latter  cause  are  probably  greater 
in  this  country  than  in  the  older  ditches  of  Europe 

124 


THE   DUTY   OF  WATER 

because  the  prevailing  practice  in  the  West  is  to 
build  a  bank  on  the  lower  side  of  the  canal  only. 
This  produces  stagnant  lakes  and  pools  on  the 
upper  side  wherever  the  canal  crosses  ravines  or 
where  the  land  on  the  upper  side  is  so  low  that  the 
water  overflows  the  top  of  the  excavation  when 
the  canal  is  filled.  This  is  a  prevailing  mode 
wherever  canals  are  built  along  slopes.  In  addi- 
tion, much  water  is  lost  because  care  has  not  been 
taken  in  securing  a  perfect  union  between  the 
embankment  on  the  lower  side  of  the  canal  and 
the  original  surface  on  which  it  rests.  In  order 
to  secure  this,  it  is  necessary  to  have  all  of  the 
growth  and  rubbish  removed,  and  the  original 
surface  thoroughly  ploughed,  but  in  many  canals 
precautions  of  this  character  have  been  wholly 
disregarded. 

Where  ditches  are  cemented,  as  in  Southern 
California,  or  where  the  water  contains  a  cement- 
ing material,  as  is  the  case  in  Arizona  and  some 
of  the  streams  east  of  the  Rocky  Mountains,  the 
loss  in  the  main  canals  is  comparatively  small,  but 
in  much  of  the  West  the  conditions  are  quite  dif- 
ferent. Instead  of  impervious  channels,  water  is 
conveyed  in  open  ditches  over  porous  formations 
of  loose  earth  and  gravel.  These  formations  act 
like  a  sieve  when  water  is  turned  on  them. 

In  one  of  the  cemented  canals  of  California 
water  is  transported  28  miles  with  a  total  loss  from 
evaporation  of  only  one  per  cent.  Professor  For- 
tier,  of  the  Montana  Agricultural  College,  has 


IRRIGATION   INSTITUTIONS 

determined  by  measurement  that  while  the  loss 
from  both  seepage  and  evaporation  on  one  canal 
amounted  to  about  ^  of  the  total  flow,  the  quantity 
evaporated  was  only  y1^  of  the  loss  by  seepage. 
So  long  as  owners  believe  that  losses  are  due  to 
evaporation,  they  will  be  content  to  let  things 
alone  because  they  cannot  be  regulated.  Losses 
from  seepage,  can,  however,  be  prevented,  and  as 
water  becomes  more  valuable,  this  prevention  will 

Pay- 
One  of  the  causes  of  excessive  loss  is  too  great 
velocity,  which  prevents  the  deposit  of  silt  upon 
either  sides  or  bottoms  of  canals.  The  porous 
material  over  which  the  water  runs  is  continuously 
swept  clean  and  in  a  condition  to  lose  the  largest 
volume  of  water.  Experiments  have  shown  that 
one  of  the  most  effective  ways  of  lessening  these 
losses  is  by  the  silting  up  the  bed  with  fine  mate- 
rial. It  is  also  shown  that  in  ordinary  soils  a 
velocity  of  from  2j  to  3  feet  per  second  is  the  one 
to  be  sought  for. 

Another  means  of  lessening  losses  by  seepage 
has  been  referred  to.  This  is  rotation  in  use.  To 
bring  this  about  will  require  time,  as  it  will  involve 
the  reforming  of  many  contracts  between  irriga- 
tors  and  ditch  companies,  which  provide  for  the 
delivery  of  water  in  inches  or  cubic  feet  per  second 
and  make  no  provision  for  intermittent  use.  Many 
of  the  irrigation  laws  also  restrict  appropriator's 
rights  to  a  continuous  flow. 

The  principal  losses  from  evaporation  occur  in 
126 


THE   DUTY   OF   WATER 

laterals  and  in  spreading  water  over  fields.  In 
passing  through  small  lateral  ditches  water  be- 
comes heated,  and  when  turned  over  the  sun-baked 
fields  it  is  rapidly  dissipated  in  the  surrounding 
air.  Practical  irrigators  understand  this.  They 
know  that  a  given  volume  of  water  will  irrigate 
more  acres  at  night  than  in  the  daytime.  It  is 
not  an  uncommon  phenomenon  to  see  the  flooded 
area  actually  recede  during  the  middle  of  the  day, 
although  a  large  volume  of  water  is  still  running 
on  it.  The  increased  losses  from  evaporation  more 
than  absorb  all  the  water  carried  in  the  laterals. 

Losses  from  evaporation  have,  however,  an  im- 
portant relation  to  the  value  of  reservoirs.  Meas- 
urements made  at  Phoenix,  Arizona,  show  average 
losses  for  three  years  of  yj\  inches.  The  loss  at 
Mesa,  Arizona,  in  1900,  from  May  2  to  November 
12,  was  47  inches.  At  Reno,  Nevada,  from  May 
to  October,  42  inches.  At  Wheatland,  Wyoming, 
a  series  of  measurements  was  made  for  the  purpose 
of  comparing  the  losses  from  tanks  on  land,  like 
those  reported  above,  with  those  from  a  similar 
tank  floating  in  water,  the  latter  presenting  more 
nearly  the  conditions  found  in  a  reservoir.  The 
loss  from  the  land  tank  was  22  per  cent  greater 
than  that  from  the  other,  showing  that  the  losses 
given  above  are  greater  than  would  take  place 
from  the  surface  of  a  reservoir.  The  annual  losses 
to  be  expected  from  reservoirs  vary  in  different 
parts  of  the  arid  region  from  4  to  6J  feet. 

There  are  several  factors  which  have  tended  to 
127 


IRRIGATION   INSTITUTIONS 

lower  the  duty  of  water  in  the  West.  One  is  the 
granting  of  rights  to  more  water  than  was  needed. 
The  holder  of  such  a  right  tries  to  divert  all  the 
water  allowed  in  order  to  retain  the  privilege, 
often  doing  this  to  his  own  injury  and  that  of  his 
neighbors.  Where  charges  for  water  are  based  on 
the  acres  irrigated,  it  always  leads  to  wasteful  use, 
the  purchaser  believing  that  the  more  water  he  ap- 
plies to  his  land  the  more  he  gets  for  his  money. 
In  order  to  prevent  abuses  of  this  character,  the 
legislature  of  Idaho,  in  1899,  passed  a  law  requir- 
ing all  charges  for  water  to  be  "  based  upon  the 
quantity  delivered  to  consumers,  and  not  in  any 
case  to  depend  upon  the  acres  irrigated." 

Many  water-right  contracts  assume  a  duty  of 
water,  and  give  the  irrigator  no  rebate  or  reduc- 
tion where  he  uses  a  less  amount  Many  require 
the  irrigator  to  pay  for  the  maximum  volume  used 
at  any  one  time,  instead  of  paying  for  the  average 
volume  delivered  during  the  season.  The  irri- 
gator, therefore,  has  to  contract  for  what  he  will 
need  during  the  heated  term.  Where  rotation  is 
not  permitted  he  also  has  to  procure  water  enough 
to  flow  over  the  land  quickly.  Men  who  realize 
that  their  charges  for  water  go  on  whether  their 
ditches  are  full  or  empty,  are  tempted  to  keep 
them  full  all  the  time  and  waste  what  they  do  not 
use. 

Water-right  contracts  which  provide  for  a  con- 
tinuous flow  and  charge  for  it  incite  farmers  to 
waste  water.  They  use  it  when  they  do  not  need 
128 


THE   DUTY   OF   WATER 

it  because  they  have  to  pay  for  it.  The  following 
extract  from  a  water-right  notice  illustrates  the 
objectionable  feature  of  these  contracts  :  — 

To  THE  PATRONS  OF  THE  CANAL  : 

Water  will  be  furnished  for  the  irrigation  season  of  1899 
at  the  rate  of  $225  per  cubic  foot  per  second,  continuous  flow 
for  the  season,  or,  upon  applicant  waiving  the  right  to  demand 
water  by  quantity,  at  the  rate  of  $1.50  per  acre,  one-half  of 
the  amount  to  be  due  and  payable  on  or  before  July  15,  and 
the  balance  to  be  due  and  payable  on  or  before  November  i, 
1899.  No  application  will  be  received  the  amount  of  which 
is  less  than  $5,  except  for  town  lots.  .  .  . 

Where  water  is  delivered  by  the  cubic  foot  per  second,  the 
flow  shall  be  a  continuous  flow  as  far  as  possible,  and  the 
amount  contracted  for  will  be  the  maximum  amount  that  will 
be  delivered  at  any  one  time.  The  maximum  amount  of  water 
to  be  delivered  by  the  acre  at  any  one  time  will  be  at  the  rate 
of  one  cubic  foot  per  second  for  fifty  acres  (or  one  miner's 
inch  per  acre),  and  the  total  maximum  quantity  allowed  at 
$1.50  per  acre  will  be  sufficient  to  put  2  feet  in  depth  on 
land  irrigated  (equivalent  to  a  continuous  flow  of  one-half 
miner's  inch  per  acre  for  101  days).  Any  water  used  above 
said  2  acre-feet  will  be  charged  for  at  proportional  rate. 

Under  this  contract,  if  the  farmer  purchases 
water  by  the  cubic  foot  per  second,  he  has  to  pay 
for  the  greatest  volume  he  uses  at  any  one  time, 
even  if  this  larger  use  does  not  extend  over  more 
than  a  few  hours.  He  has  to  pay  at  an  emergency 
rate  for  periods  when  he  does  not  use  water  at  all. 
He  has  to  buy  enough  water  to  give  him  an  irriga- 
tion head,  otherwise  he  wastes  time  in  irrigation^ 
or  waters  his  crops  so  slightly  that  it  is  like  a 
drizzling  rainfall  which,  no  matter  how  long  it 

K  129 


IRRIGATION   INSTITUTIONS 


continues,  never  properly  wets  the  soil.  While 
this  contract  is  called  a  delivery  by  volume,  it  is 
not  so  in  fact.  The  irrigator  does  not  pay  for 
what  he  gets,  nor  is  he  rewarded  by  any  saving 
he  may  make. 

Mr.  D.  W.  Ross,  State  engineer  of  Idaho,  has 
made  for  the  Department. of  Agriculture l  a  series 
of  measurements  of  the  quantity  of  water  used  by 
irrigators  under  contracts  of  this  character,  which 
shows  that  the  skilful  operator  paid  three  times 
as  much  for  the  water  he  used  as  the  wasteful  one. 

The  following  table  summarizes  some  of  Mr. 
Ross's  measurements :  — 

COST  OF  WATER  TO  DIFFERENT  IRRIGATORS  UNDER  THE 
SAME  DITCH 


User 

Volume 
contract- 
ed for 

Price  paid 

Area 

Amount 
paid  per 
acre 

Water  used 

Amount 
paid  per 
Acre- 
foot 

Cu  ft 

per  sec. 

Acres 

Acre-feet 

No.  I  Lateral 

13.02 

$976.50 

790 

$1-23 

3»997-02 

$.24 

No.  2 

2.00 

150.00 

105 

i-43 

252.40 

•59 

No.  3 

1.20 

9O.OO 

74 

i-35 

109.21 

.82 

While  these  three  irrigators  all  obtained  water 
under  the  same  contract,  and  all  at  the  same  rate 
for  a  cubic  foot  per  second  continuous  flow,  yet  the 
rate  paid  per  acre-foot  by  the  third  was  nearly  four 
times  that  paid  by  the  first.  Mr.  Ross's  studies 

1  Bulletin  86,  Office  of  Experiment  Stations,  United  States 
Department  of  Agriculture. 

130 


THE   DUTY   OF  WATER 

showed  that  one  irrigator  received  only  43  per  cent 
of  the  water  allowed  him  under  his  contract.  If  he 
had  wasted  what  he  did  not  need,  his  water  would 
have  cost  him  at  the  rate  of  20  cents  an  acre-foot. 
By  using  economy  his  water  cost  him  49.6  cents 
an  acre-foot.  All  water-right  agreements  should 
promote  economy.  A  charge  for  water  by  the 
acre-foot  delivered  rather  than  by  the  acres  of 
land  irrigated  cannot  fail  to  have  a  marked  influ- 
ence in  increasing  the  duty  of  water.  Another 
way  to  increase  the  duty  of  water  would  be  to 
charge  the  farmer  for  what  he  uses  each  twenty- 
four  hours.  He  will  then  realize  how  much  it 
costs  him  each  day ;  and  if  he  knows  that  he  is  to 
pay  only  for  the  time  his  lateral  is  filled,  care  will 
be  taken  that  water  runs  in  it  no  longer  than  is 
necessary. 

Many  of  the  extravagant  appropriations  of  water 
have  had  their  origin  in  the  practice  of  claimants 
stating  the  greatest  quantity  they  had  used  in  a 
single  day,  and  receiving  a  decree  allowing  them 
this  volume  for  the  entire  season.  The  Utah 
farmer,  whose  use  of  water  is  shown  by  Plate  III, 
could  have  stated  truthfully  that  he  had  used  4 
cubic  feet  per  second  in  irrigating  his  6o-acre 
farm,  because  he  did  use  this  volume  for  a  few 
hours.  The  error  in  the  decree  was  giving  him  a 
right  to  a  continuous  use  of  this  quantity.  Meas- 
urements in  Arizona  showed  that  an  irrigator,  in 
1900,  used  10  cubic  feet  of  water  per  second  of 
time  in  watering  60  acres  of  grain,  but  he  only 


THE   DUTY   OF  WATER 

spent  6  days  in  its  irrigation.  To  have  allowed 
him  this  volume  of  water  flowing  continuously 
would  extend  the  6  days'  actual  use  to  a  long 
period  when  water  was  not  used  at  all. 

Rotation    • 

In  many  places  where  water  contracts  provide 
for  the  delivery  of  a  continuous  flow,  in  practice 
the  use  is  entirely  different.  On  the  Gage  Canal 
the  irrigator  of  a  loacre  tract  will  purchase  2 
inches  of  water,  but  he  does  not  receive  a  constant 
flow  of  that  volume.  Instead,  he  is  permitted  to 
accumulate  credits  for  the  period  in  which  water 
is  not  used,  and  at  the  end  of  20  days  of  non-use 
he  has  credit  of  40  inches  of  water,  which  he  can 
take  in  2  days  at  the  rate  of  20  inches  a  day,  or, 
if  he  does  not  use  water  for  30  days,  he  accumu- 
lates a  credit  of  60  inches  of  water,  which  he  can 
take  in  2  days  at  the  rate  of  30  inches  a  day,  or  in 
3  days  at  the  rate  of  20  inches  a  day.  In  this  way 
he  receives  a  sufficient  flow  of  water  to  permit  him 
to  use  it  to  advantage.  On  many  canals  rotation 
periods  are  arranged  for,  and  the  irrigator  receives 
a  large  amount  of  water  for  a  short  time  instead 
of  a  small  volume  of  water  continuously. 

Some  contracts  recently  made  in  Idaho  provide 
for  the  delivery  of  water  by  the  "  24-hour  inch," 
or  fraction  thereof.  A  scale  of  prices  is  adopted, 
and  the  irrigator  can  order  and  pay  for  whatever 
volume  he  needs  and  for  the  length  of  time  which 
he  needs  it. 

133 


IRRIGATION   INSTITUTIONS 

The  accumulation  of  credits,  the  sale  of  water 
by  the  "  24-hour  inch "  or  a  similar  unit,  or  by 
the  acre-foot,  all  necessitate  the  arrangement  of  a 
system  of  rotation  in  use. 

The  owner  of  a  large  farm  who  purchases  a 
sufficient  quantity  of  water  to  provide  a  serviceable 
irrigation  head  can  practise  rotation  in  the  irriga- 
tion of  his  own  fields ;  but  the  irrigator  of  a  small 
tract  of  land  does  not  have  this  advantage,  and 
where  he  is  compelled  by  his  contract  to  pay  for 
the  largest  quantity  he  uses  at  any  one  time,  he  has 
to  suffer.  The  practical  advantages  of  a  service- 
able irrigation  head  in  the  pouring  of  water  over 
the  heated  earth  are  so  great  that  the  adoption  of 
some  standard  of  measurement  which  will  favor  ro- 
tation should  receive  the  attention  of  all  interested 
in  irrigation  development.  The  stockholders  in 
canals,  the  public,  which  hopes  to  secure  the 
reclamation  of  the  largest  area,  as  well  as  the 
farmer  who  pays  for  the  water,  all  have  an  interest 
in  this  matter. 

The  adoption  of  such  a  system  would  not  only 
lead  to  better  methods  on  the  part  of  the  farmers, 
but  greatly  diminish  the  time  required  to  distribute 
water  over  the  fields.  A  more  important  advantage 
is  that  it  is  equitable  and  just.  Under  such  a  con- 
tract the  irrigator  pays  only  for  what  he  gets.  He 
is  punished  in  purse  when  he  wastes  water,  and  is 
rewarded  for  his  economy  when  he  irrigates  with 
care.  The  effort  to  reduce  the  size  of  water  bills 
leads  to  a  better  preparation  of  the  fields  and  a 

134 


THE   DUTY   OF  WATER 

better  cultivation  of  the  soil.  The  system  of  rota- 
tion which  it  involves,  and  the  arrangement  for  the 
accurate  measurement  of  water  which  it  presup- 
poses, both  tend  to  the  lessening  of  controversies 
and  the  strengthening  of  habits  of  system  and 
order.  The  canal  as  well  as  the  irrigator  is  benefited, 
because  the  economy  of  water  permits  the  irriga- 
tion of  additional  land  and  an  increase  in  the  num- 
ber of  canal  patrons.  It  also  tends  to  lessen  the 
losses  from  seepage  and  evaporation  by  lessening 
the  miles  of  ditches  and  laterals  which  are  kept 
constantly  saturated. 

A  canal  which  supplies  one  hundred  farms  will 
have  to  furnish  them  the  water  they  need  whether 
they  receive  a  small  flow  continuously  or  a  larger 
volume  as  they  need  it.  Rotation  on  large  canals 
permits  them  to  be  divided  into  sections,  and  the 
watering  of  the  land  under  one  section  at  a  time. 
A  canal  thirty  miles  long  can  be  divided  into  three 
sections  of  ten  miles  each,  and  all  loss  from  seep- 
age and  evaporation  on  the  lower  twenty  miles 
can  be  saved  while  the  irrigators  of  the  upper  sec- 
tion are  being  supplied.  When  the  lower  section 
is  reached,  water  can  be  rushed  through  with  less 
loss  because  the  canal  is  full  throughout  its  length 
and  is  not  depleted  by  laterals  along  the  route. 
The  greatest  saving  in  rotation,  however,  is  made 
in  the  laterals.  The  most  wasteful  system  of  dis- 
tribution is  to  permit  water  to  slowly  dribble  through 
these  laterals  all  the  time.  The  manager  of  a  canal, 
who  can  induce  irrigators  to  take  water  by  turns, 

135 


IRRIGATION   INSTITUTIONS 

does  more  toward  raising  the  duty  of  water  than 
can  be  done  by  any  other  single  reform.  The  use 
of  a  unit  which  lends  itself  to  rotation  does  much 
toward  securing  this  result.  It  also  tends  toward 
a  rotation  in  the  division  of  rivers  between  canals. 
Where  streams  are  low  and  all  the  canals  cannot 
be  filled,  there  is  great  waste  in  keeping  all  of  them 
partly  filled.  The  loss  from  evaporation  is  practi- 
cally the  same  whether  the  canals  are  filled  or 
nearly  empty.  It  is  much  better  to  run  part  of  the 
canals  to  their  full  capacity  for  a  few  days  and 
then  turn  the  entire  supply  into  others  and  thereby 
reduce  the  waste  in  transit. 

The  losses  from  seepage  and  evaporation  amount 
to  nearly  30  per  cent  of  the  total  supply,  and  if 
one-half  of  this  loss  can  be  saved,  it  will  result  in 
a  material  addition  to  the  income  of  many  irriga- 
tion works. 

The  provisions  of  water-right  contracts  show  a  wide 
variation  in  the  views  held  of  the  duty  of  water. 
The  quantity  agreed  to  be  furnished  in  a  large 
number  examined  varied  from  one  acre-foot  to  the 
acre  to  7.93  acre-feet  of  water  per  acre. 

A  proper  understanding  of  the  duty  of  water 
renders  it  necessary  not  only  to  determine  the  total 
volume  used,  but  the  amount  required  in  the  dif- 
ferent weeks  or  months  of  the  irrigation  period. 
Canals  should  be  planned  to  meet  emergency 
requirements ;  they  should  be  large  enough  to 
furnish  the  greatest  volume  required  at  any  one 
time.  It  will  do  no  good  to  flood  fields  in  Septem- 

136 


THE   DUTY   OF  WATER 

her  if  the  canal  could  not  supply  the  water  needed 
in  July.  The  time  when  water  is  used  in  irrigation 
also  determines  how  much  land  can  be  irrigated 
from  the  natural  flow  of  streams.  Stream  gaugings 
give  half  the  information  needed  to  determine  the 
area  they  will  reclaim.  They  show  how  much 
water  there  is  and  when  it  can  be  had.  This 
information  must  be  supplemented  by  the  time  it 
is  needed.  Neither  stream  gaugings  nor  measure- 
ments of  water  used  are  complete  in  themselves. 
They  must  be  taken  together  in  forming  rational 
plans  for  irrigation  development. 

On  many  streams  a  low  duty  of  water  does  not 
indicate  unskilful  use.  In  the  valley  of  Salt 
River,  for  example,  irrigators  have  learned  to  pro- 
vide against  the  season  of  shortage  by  pouring  on 
the  land  all  it  will  hold  when  the  stream  is  high. 
In  this  way  they  store  up  in  the  subsoil  a  reserve 
for  crops  to  grow  upon  when  the  stream  is  low 
and  ditches  are  empty.  Winter  irrigation,  while 
it  lowers  the  apparent  duty  of  water,  is  really  a 
valuable  means  of  saving  a  supply  which  would 
otherwise  run  to  waste.  The  practice  can  only  be 
commended  as  an  imperfect  substitute  for  the 
storage  of  water  in  reservoirs,  because  it  does  not 
produce  the  satisfactory  results  that  are  obtained 
when  water  is  applied  at  the  time  when  needed. 

In  his  interesting  discussion  of  the  value  of 
reservoirs  as  a  means  of  regulating  the  discharge 
of  Western  rivers  and  increasing  the  use  of  their 
waters  in  irrigation,  Captain  Hiram  M.  Chittenden, 

'37 


IRRIGATION   INSTITUTIONS 

United  States  engineer,  reached  the  conclusion 
that  the  storage  of  25  per  cent  of  the  total  run-off 
would  enable  the  whole  supply  to  be  put  to  use, 
the  other  75  per  cent  being  taken  directly  from 
the  stream  during  the  irrigation  period.  In  the 
same  report,  Hon.  F.  J.  Mills,  then  State  engineer 
of  Idaho,  estimated  that  one-half  the  total  flow  would 
need  to  be  stored,  while  the  writer's  conclusion  was 
that  40  per  cent  would  need  to  be  stored. 

All  of  these  were  theoretical.  Since  then  a  com- 
parison of  the  measurements  made  by  the  Office  of 
Experiment  Stations,  United  States  Department  of 
Agriculture,  of  the  time  when  water  is  used  in  irri- 
gation with  the  gaugings  of  the  flow  of  streams  made 
by  the  United  States  Geological  Survey  has  coin- 
cided most  nearly  with  the  last-named  percentage ; 
but  more  facts  are  needed  before  any  reliable  esti- 
mate can  be  made  regarding  the  average  percentage 
required  to  be  stored.  Plate  IV.  shows  graphically 
the  results  of  one  of  these  comparisons  of  the  time 
when  water  is  needed  in  irrigation  and  the  time 
when  it  is  furnished  by  a  stream,  and  the  amount 
of  regulation  which  will  be  required  to  make  the 
two  coincide.  The  stream  used  in  this  case  was 
Logan  River,  Utah.  In  three  years,  during  which 
measurements  have  been  made  on  this  stream,  the 
irrigation  period  began  in  June  and  ended  in  Sep- 
tember, no  water  being  required  before  or  after 
these  four  months.  The  diagram  was  based  on 
the  use  of  water  and  the  discharge  of  the  river  for 
1900.  In  that  year  on  the  canals  measured  the 

138 


XhAORAM  SHOWDTG]REGULATION  orLooANHrvER  TO 
RSKMJT  USE  OP  ENTIRE  FLOW  rw  IRRIGATION; 

White  areas  represent  natural  flow  during  non-irrigation 

•period,  and.  Hack  areas  the  natural  flow  during1  -period of 

TTTigaHon 

Hatched  areas  represent  tiine  When  water  stored.  during1 

non-irrigation  period  would  i>e  uaed. 


Diagram,  STuvwing  when  WoZermay  be  Stor&dcmd,VcHume> 
Stored  in  ondar  b>  tttilizx,  Zrdire  ITaw  of  tha  Stream,. 


U,08I 

/2,551 

14,204- 

21,  937 

ACa£     FC£T. 

•tqsaz. 

20,  733 

18,039 

17,401     \ 

MARCH  APRIL 


Diaram,  Sftarring  %hs;  Time,  whtn  thje.  Stored  Watzrvrould  fo  used 
used,  eajch^Mbnifi,  of  Irrigcction  Season,. 


11,094. 


ACRE  FEET. 
&9,  700 


ANNUAL    OtSCMAfHSC 

Or  STBEAHt 

faff  IRRIGATION 

IM  A&tC  FEET 

8Y  DIRECT  DIVERSION. 

ACBE  FSKT  WHICH 

363,  A5« 

SO9,S/O=  ^7/W? 

MUST  BS  STORED 

CENT  OF  TOTAL 

A59,fi4S~43P£» 

QJ9CHARGE. 

CfffT  Of  TOTAL 

DISCHARGE. 

IRRIGATION    INSTITUTIONS 

relative  percentages  of  the  water  used  in  the  dif- 
ferent months  were  as  follows  :  — 

Per  cent 
June   v 26.8 

July      ..^--  .j;.w-^.-;.V' -  ~» -•"•••-•*-  ,-'T- •J'-ri       .  29.7 

August     .         •..•....!   ,,.X...  *.  .  ---t.        •         •          24-8 

September .  :  18.7 

Total       .        .        .-'.'.--     .     "  .        .        100. o 

The  percentage  of  the  total  run-off  of  the  stream 
for  the  different  months  was  as  follows :  — 

Per  cent 

January  ..,/,..•%•     _....._,-. ......  ^  j    •••v-  3.8 

February          - ,.,  ..,.  3.4 

March     .  V   ;. '       '.  3.9 

April *~  ii.o 

May -,>••  5-6 

June 23.6 

July     .  ;.        ...       '.-/     .       -.-       .-      .  18.3 

August    .        .        .        ...       ..,...- r».. ''.—  j--. :.«•-•<  8.6 

September .  6.1 

October  .  ;    ..:•'.,    """.'  """.'"      .'     "  .        .        T"  5.0 

November        .     -  «  •      .     /»        .        .        .  ••«..-  4.8 

December        .  '     ^        .i-       i        .        .        .        .  5.9 

Total  .        .:      .        *        .        .        *        .  100.0 

Without  regulation  by  storage  43  per  cent  of 
the  total  flow  runs  off  in  the  months  when  water 
is  not  needed,  and  only  57  per  cent  during  the 
irrigation  season.  During  the  growing  season 
the  run-off  of  the  stream  is  not  in  accordance 
with  the  needs  of  irrigators.  There  is  more 
water  in  June  than  is  required,  and  not  enough 
in  either  August  or  September,  so  that  regula- 
tion is  needed  to  permit  of  the  complete  use  of 

140 


THE   DUTY   OF  WATER 

the  57  per  cent  which  the  stream  carried  during 
the  four  months  when  water  is  used.  The  storage 
of  the  water  which  ran  off  in  the  non-irrigation 
months,  in  such  a  way  as  to  permit  its  being  turned 
into  the  stream  again  when  needed,  would  permit  of 
the  complete  utilization  of  the  57  percent  by  direct 
diversion.  To  utilize  all  the  stored  supply  and  fur- 
nish water  to  irrigators  at  the  times  when  they  would 
naturally  use  it,  would  require  the  following  per- 
centages of  the  total  supply  to  be  turned  out  of 
the  reservoirs  during  each  month  of  the  irrigation 

period :  — 

Per  cent 

June ;  ';  3 

July "  V  V  II 

August •  ;« t«  16 

September .ir-U  13 

Total          .        .        .        .        .        .     j^'^f..  ~43 

The  diagrams  give  the  quantities  of  water  repre- 
sented by  these  percentages. 

The  practice  of  pouring  water  on  the  land  in 
order  to  fill  the  subsoil  has  resulted  in  making 
ponds  and  marshes  of  large  areas,  and  is  also 
bringing  about  the  development  of  water  by 
pumping.  There  are  fifteen  hundred  pumping 
plants  in  the  Santa  Clara  Valley  alone,  nearly  all 
of  which  are  drawing  water  out  of  the  subsoil  for 
application  to  the  surface.  Large  pumping  plants 
are  being  established  in  Salt  River  Valley  for  the 
same  purpose. 

The  following  conclusions  regarding  the  duty  of 
water  in  this  country  seem  to  be  warranted  :  — 
141 


IRRIGATION    INSTITUTIONS 

(1)  That  the  duty  of  water  in  the  older  irrigated 
districts  of  the  United  States  is  as  high  as  it  is  in 
the  older  districts  of  the  world,  showing  that  our 
practice  is  fully  equal  to  theirs. 

(2)  Where  low  duty  exists,  it  is  due  in  part  to 
excessive  appropriations,  and  part  to  badly  framed 
water-right  contracts,  and  in  part  to  losses  from 
seepage  in  canals. 

(3)  The  most  effective  measures  for  increasing 
the  duty  of  water  are  to  lessen  losses  by  seepage, 
increase  the  water-supply  by  drainage,  provide  for 
rotation  in  use,  and  charge  for  the  quantity  re- 
ceived. 

(4)  That  it  is  not  unreasonable  to  expect  that 
the  present  average  duty  of  water  will  in  time  be 
doubled,  and  that  there  will  be  a  large  increase 
in  the  irrigated  area  from  this  cause  alone. 


142 


CHAPTER  VIII 

IRRIGATION  IN  COLORADO 

IN  a  number  of  important  particulars  Colorado 
has  been  a  leader  in  irrigation  affairs.  Although 
water  is  not  so  valuable  as  in  California,  more  is 
being  used.  There  are  more  miles  of  canals  in 
Colorado  than  in  any  other  State ;  her  mountains 
are  the  storehouse  which  fills  rivers  flowing  into 
every  surrounding  State.  To  Colorado  belongs 
the  credit  of  having  been  the  first  State  to  enact 
a  code  of  laws  for  the  public  administration  of 
streams,  and  these  laws  have  directly  and  indi- 
rectly influenced  more  people  than  those  of  any 
other  commonwealth.  It  is  appropriate,  therefore, 
that  they  should  be  first  described. 

The  first  irrigators  in  Colorado  were  Mexicans. 
They  established  themselves  in  the  southern  part 
of  the  State,  built  small  ditches,  and  cultivated 
small  farms.  The  Mexican  settlements  have, 
however,  grown  slowly.  Their  colonies  received 
few  accessions  from  their  own  people,  and  their 
methods  were  not  suited  to  Eastern  farmers.  The 
present  irrigation  system  of  Colorado  had  its  birth 
in  the  northern  part  of  the  State  along  the  South 
Platte  and  its  tributaries.  Along  the  branch  of 
the  overland  trail  which  followed  the  South  Platte 


IRRIGATION    INSTITUTIONS 

and  the  Poudre,  ditches  were  built  near  stage  sta- 
tions and  where  settlers  were  assured  of  protection 
from  Indians,  as  early  as  1860.  The  beginning  of 
the  colony  enterprises  at  Greeley,  Longmont,  and 
Fort  Collins  came  ten  years  later,  and  from  that 
time  to  the  present  irrigation  has  been  recognized 
as  one  of  the  State's  important  industries.  The 
era  of  corporate  canal  building  began  in  1878,  and 
six  years  later  the  State  engineer  estimated  that 
1,000,000  acres  had  been  reclaimed.  The  first  irri- 
gation law  was  passed  in  1861,  and  governed  the 
diversion  of  water  from  streams  for  twenty  years. 
It  gave  the  owners  of  land  along  streams  the  right 
to  appropriate  water  for  irrigation.  The  right  of 
others  than  landowners  to  appropriate  water  was 
recognized  in  Article  16,  Section  5,  of  the  State 
Constitution,  adopted  in  1876,  in  which  the  water 
of  every  natural  stream  is  dedicated  to  the  use  of 
the  people  of  the  State. 

Under  the  law  of  1861  no  record  of  appropria- 
tion was  required.  Sometimes  notices  were  posted, 
and  sometimes  claims  were  recorded  in  the  office 
of  the  county  clerk,  but  there  was  no  rule  requir- 
ing this.  County  records  were  not  required  until 
1 88 1,  and  State  records  not  until  1887.  Under  the 
law  of  1 86 1  the  principle  of  dividing  water  by 
rotation  was  legalized.  The  county  judge  was 
authorized  to  appoint  three  commissioners  to  ap- 
portion the  water-supply  among  users  on  certain 
or  alternate  days,  as  in  their  judgment  might  be 
best.  While  this  law  was  never  formally  repealed, 

144 


IRRIGATION   IN   COLORADO 


the  statutes  of  1879  an^  1881  supplanted  it,  and 
court  decisions  have  practically  rendered  it  inoper- 
ative by  giving  rights  to  a  continuous  flow  in  the 
adjudication  of  appropriations.  A  recent  decision 
of  the  lower  courts  has  also  denied  water  commis- 
sioners authority  to  require  rotation  in  the  use  of 
water,  although  it  would  result  in  a  great  saving 
in  distribution  and  a  better  protection  of  all  rights 
except  those  of  the  earliest  priority. 

The  Irrigation  Acts  of  1879  and  1881  have  a 
historic  interest,  because  they  were  the  first  at- 
tempt in  this  country  to  assert  public  control  over 
the  division  of  streams  used  in  irrigation.  The 
credit  of  this  innovation  is  due  to  the  farmers  of 
the  northern  colonies,  chiefly  those  of  Greeley  and 
Longmont.  This  movement  had  its  origin  in  the 
drouth  of  the  summer  of  1874.  The  ditches  above 
the  Greeley  Colony  canal  along  the  Cache  la  Poudre 
River  had  diverted  the  entire  flow  of  the  stream. 
There  was  great  danger  that  the  trees,  small  fruits, 
and  lawns  of  the  town  would  be  ruined.  Similar 
conditions  also  existed  on  a  number  of  other  trib- 
utaries of  the  South  Platte.  Expeditions  from 
below  destroyed  the  dams  and  head-gates  of  the 
irrigators  above.  The  impossibility  of  agreeing 
among  themselves  over  the  division  of  the  stream, 
and  the  uncertainty  and  anxiety  of  the  irrigators 
under  the  lower  ditches,  created  a  sentiment  in 
favor  of  public  supervision.  Neighborhood  agree- 
ments were  made,  but  these  failed,  or  were  not 
kept.  Several  conventions  were  held  before  an 

L  145 


IRRIGATION    INSTITUTIONS 

agreement  was  reached  regarding  the  principles  of 
the  bill  finally  adopted.  In  these  discussions  most 
of  the  farmers  favored  the  establishment  of  rights 
by  a  special  tribunal  composed  of  practical  men, 
who  were  personally  familiar  with  the  conditions 
and  methods  of  irrigation.  But  this  was  aban- 
doned because  of  the  opposition  of  attorneys,  who 
insisted  that  the  determination  of  titles  to  streams 
was  a  judicial  act  which  could  only  be  performed 
by  the  courts.  The  committee  which  framed  the 
bill  also  disagreed  regarding  the  character  of  the 
rights  to  water  which  should  be  recognized.  Some 
held  that  there  should  be  no  right  to  water  except 
that  of  use,  and  that  these  rights  should  be  attached 
to  the  lands  reclaimed.  Dr.  J.  L.  Bond  of  Long- 
mont  supported  this  view  with  vigor  and  persist- 
ence, but  was  overruled  by  the  irrigators  from 
Greeley,  who  favored  giving  the  rights  to  the 
ditchowners.  There  was  also  a  disagreement 
regarding  what  should  govern  the  amount  of  the 
right,  —  whether  it  should  be  the  amount  actually 
used  or  the  amount  which  the  ditch  could  carry. 
The  law,  as  passed,  makes  diversion  the  sole  test 
of  an  appropriation.  Beneficial  use  is  practically 
ignored.1 

1  Said  referee  shall  also  examine  all  witnesses  to  his  own  satis- 
faction, touching  any  point  involved  in  the  matter  in  question,  and 
shall  ascertain  as  far  as  possible  the  date  of  the  commencement 
of  each  ditch,  canal,  or  reservoir,  with  the  original  size  and  carry- 
ing capacity  thereof,  the  time  of  the  commencement  of  each  en- 
largement thereof,  with  the  increased  carrying  capacity  thereby 
occasioned,  the  length  of  time  spent  in  such  construction  or  en- 
146 


IRRIGATION    IN   COLORADO 


The  Adjudication  of  Water  Titles 

Under  the  acts  of  1879-1881  any  one  interested 
may  petition  the  district  court  for  the  adjudication 
of  rights  within  his  district.  The  statute  provides 
for  the  taking  of  testimony  by  a  commissioner  or 
referee,  for  the  rendering  of  a  decree  by  the  court, 
and  for  appeals  therefrom  to  the  supreme  court  at 
any  time  within  four  years  afterward.  Ample 
provision  is  made  for  protecting  the  interests  of 
appropriators,  but  not  the  public  interests,  which 
are  vitally  affected  by  the  transfer  of  streams  from 
public  to  private  control.  Lack  of  consideration 
for  the  needs  of  future  irrigators  is  the  weakness 
of  the  Colorado  system  of  establishing  rights. 
The  adjudication  of  water  rights  has  a  vital  influence 
on  the  social  and  economic  life  of  the  communities 
affected,  but  in  Colorado  the  only  parties  repre- 
sented are  those  seeking  control  of  the  property. 
Neither  the  State  engineer,  the  water  superin- 
tendent, nor  the  water  commissioner  are  given 
notice,  nor  is  their  advice  asked  regarding  the  prac- 

largement,  the  diligence  with  which  the  work  was  prosecuted,  the 
nature  of  the  work  as  to  difficulty  of  construction,  and  all  such 
other  facts  as  may  tend  to  show  compliance  with  the  law  in  acquir- 
ing the  priority  of  right  claimed  for  said  ditch,  canal,  or  reservoir ; 
and  upon  all  the  facts  so  obtained  shall  be  determined  the  relative 
priorities  among  the  several  ditches,  canals,  and  reservoirs,  the 
volume  or  amount  of  water  lawfully  appropriated  by  each,  as  well 
as  by  means  of  the  construction,  as  by  the  enlargements  thereof, 
and  the  time  when  each  such  several  appropriations  took  effect. 
(Mills's  Annotated  Statutes,  Sec.  2415.) 

147 


IRRIGATION    INSTITUTIONS 

tical  questions  on  which  the  success  of  these  de- 
crees depends,  and  about  which  these  officials  are  of 
all  men  the  best  informed.  In  many  cases  this  liti- 
gation is  the  first  experience  of  farmers  with  courts, 
and  of  attorneys  and  judges  with  irrigation.  Practi- 
cal and  technical  acquaintance  with  the  subject  has 
no  assured  influence,  and  often  ignorance  and  inex- 
perience have  controlled.  In  the  earlier  adjudica- 
tions no  one  knew  how  much  water  there  was  in  a 
stream  or  how  much  was  needed  for  an  acre  of  land. 
When  the  adjudications  were  made,  some  ditches 
had  been  completed.  A  great  many  had  been 
enlarged  since  their  first  construction,  and  often 
the  owners  did  not  know  what  the  ditch  would 
carry  when  it  was  first  built,  when  the  enlargement 
was  made,  or  how  much  it  had  been  changed. 
It  was  difficult  for  contestants  to  secure  evidence. 
On  a  number  of  streams  they  did  not  seek  it. 
The  appropriators  agreed  among  themselves  as  to 
the  amount  of  water  each  one  would  claim,  and 
that  they  would  not  dispute  the  claims  of  others, 
the  court  in  such  cases  giving  legal  force  and 
effect  to  an  agreed  division  of  public  property, 
which  was  acquired  not  to  use  but  to  sell. 

In  the  earlier  adjudications  the  amounts  of 
appropriations  were  based  on  the  estimated 
capacities  of  ditches  and  canals.  Sometimes  the 
amount  was  fixed  by  the  measurement  of  the 
ditch,  and  sometimes  by  what  the  appropriator 
claimed.  With  very  rare  exceptions  it  does  not 
seem  that  the  acreage  of  land  which  had  actually 

148 


IRRIGATION   IN   COLORADO 

been  irrigated  exercised  any  influence.  The  real 
issue  was  the  amount  of  water  diverted  or  proposed 
to  be  diverted.  Proof  on  this  point  was  largely 
given  by  men  without  engineering  training  and  of 
limited  experience,  who,  while  honest,  were  very 
likely  to  be  mistaken. 

As  the  adjudications  were  held  remote  from  the 
ditches  and  the  land  affected,  and  the  judge  or 
referee  did  not  visit  the  lands  and  ditches  to  see 
for  himself  whether  the  situation  was  as  it  had 
been  described,  appropriators  were  encouraged  to 
make  extravagant  claims.  All  of  the  conditions, 
therefore,  contributed  to  favor  the  granting  of 
rights  to  water  in  excess  of  the  actual  uses  or 
necessities. 

How  far  the  decreed  rights  exceeded  actual 
uses  can  be  shown  by  a  few  examples.  The 
Poudre  Valley,  on  the  whole,  is  the  best  example  of 
irrigation  in  the  Rocky  Mountain  region,  and  the 
excess  appropriations  decreed  are  rather  below 
than  above  the  average  of  the  earlier  adjudica- 
tions. Nevertheless  21  small  ditches  which 
irrigated  1000  acres  of  land  were  given  rights  to 
water  amounting  in  the  aggregate  to  692  cubic 
feet  per  second,  or  one  cubic  foot  of  water  per 
second  to  less  than  2  acres  of  land.  This  would 
provide  water  enough  to  cover  the  land  one  foot 
deep  each  day  of  the  season.  One  ditch  which 
irrigated  620  acres  of  land  6  years  after  the  decree 
was  rendered  was  given  99.38  cubic  feet  per 
second,  and  another  ditch  which  irrigated  160 
149 


IRRIGATION    INSTITUTIONS 


acres  was  given  31  cubic  feet  per  second,  or  a 
cubic  foot  per  second  to  each  5  acres  of  land  — 
more  than  20  times  the  volume  which  could 
be  beneficially  used.  Altogether,  the  104  appro- 
priators  from  this  stream  hold  adjudicated  rights 
to  4,632  cubic  feet  of  water  per  second.  Let  us 
now  compare  these  rights  with  the  water-supply. 
In  August,  1894,  the  river's  flow  was  162  cubic 
feet  per  second,  and  in  August,  1893,  141  cubic 
feet  per  second. 

In  many  instances  the  appropriations  of  water 
were  largely  in  excess  of  the  capacity  of  the 
ditches.  The  following  examples,  taken  at  random 
from  the  official  measurements  made  by  the  State 
engineer  in  1886,  —  five  years  after  the  rights  were 
decreed,  —  will  illustrate  this.  Each  of  the  four 
ditches  was  on  a  different  stream,  and  their  names 
and  locations  can  be  ascertained  from  the  official 
records  by  those  especially  interested. 


Ditch 

Amounts  of  water  decreed 

Measured  capacity 

Cu.  ft.  per  sec. 

Cu.  ft.  per  sec. 

I 
2 
3 

122.  OO 
237.00 
99.00 

50.30 
80.22 
78.00 

4 

192.00 

71.30 

Manifestly,  ditches  cannot  divert  more  water 
than  the  stream  carries,  nor  can  the  irrigators  use 
more  water  than  the  ditches  divert  Neverthe- 


IRRIGATION   IN   COLORADO 


less,  the  volume  of  water  which  was  granted 
in  the  earlier  adjudications  of  Colorado  was  al- 
ways greater  than  that  which  ran  in  the  stream 
channels.  The  report  of  the  State  engineer  for 
1891  gives  the  volume  of  water  qarried  by  the  prin- 
cipal tributaries  of  the  South  Platte  River  and  a 
table  of  the  adjudicated  rights  to  water  from  these 
tributaries.  These  permit  of  a  direct  comparison 
of  the  amount  of  water  which  was  there  to  divert 
and  the  amount  judicially  declared  to  have  been 
diverted. 

FLOW  OF  COLORADO  RIVERS  AND  THE  TOTAL  AMOUNT 

OF  WATER  DECREED  TO  HAVE  BEEN  APPROPRIATED 

THEREFROM. 


Mean  discharge 

Amount  of 

Name  of  stream 

water 

June 

July 

August 

decreed 

Cu.  ft.  per 

Cu.  ft.  per 

Cu.  ft.  per 

Cu.  ft.  per 

sec. 

sec. 

sec. 

sec. 

Cache  la  Poudre  . 

2942 

721 

265 

4693 

Big  Thompson 

1362 

349 

137 

2527 

Clear  Creek      .     . 

968 

378 

137 

1181 

St.  Vrain     .     .     . 

623 

270 

97 

2883 

Boulder  and  South 

Boulder   ... 

996 

348 

123 

4741 

Bear  Creek.     .     . 

379 

H5 

51 

374 

Recent  adjudications  agree  more  closely  with  the 
facts.  Although  the  law  does  not  require  it,  proof 
of  the  land  irrigated  is  nearly  always  submitted. 
Nevertheless,  the  granting  of  rights  in  excess  of 


IRRIGATION    INSTITUTIONS 

the  supply  and  of  the  volume  used  still  con- 
tinues. 

Another  defect  in  recent  adjudications  is  the 
great  diversity  in  the  form  of  decrees  and  in  the 
privileges  conferred  upon  appropriators.  There 
does  not  seem  to  be  any  reason  for  this  if  rights 
are  based  on  beneficial  use.  The  facts  which  con- 
trol such  use  are  so  simple  that  there  should  be 
uniformity.  It  is  certainly  exceedingly  desirable 
that  one  appropriation  from  the  Arkansas  or  Platte 
should  mean  the  same  as  every  other  appropria- 
tion, whether  in  the  same  or  in  other  districts ;  but 
they  do  not. 

The  decrees  in  the  different  districts  show  a 
wide  diversity  in  the  nature  of  the  rights  conferred 
upon  appropriators,  and  prevent  any  general  state- 
ment regarding  their  character.  Each  referee  or 
judge  seems  to  have  exercised  his  individual  dis- 
cretion or  to  have  followed  his  personal  opinions  in 
determining  what  an  appropriation  of  water  should 
mean  or  in  deciding  what  facts  are  necessary  to 
establish  it.  This  has  given  rise  to  some  eccentrici- 
ties and  grotesque  features  in  Colorado  appropria- 
tions, which  would  not  have  existed  if  all  rights  had 
been  established  in  accordance  with  some  consist- 
ent policy.  In  the  earlier  decrees  stress  was  laid 
upon  the  dimensions  and  carrying  capacities  of 
the  ditches,  and  the  amount  of  the  appropriation 
was  never  less  than  the  capacity  of  the  ditch  — 
often  several  times  that  capacity.  In  recent  decrees 
the  amount  of  appropriations  rests  mainly  upon  the 

152 


IRRIGATION    IN   COLORADO 

area  of  land  irrigated.  Where  the  acreage  is  the 
governing  condition  it  would  seem  that  the  duty 
of  water  employed  in  computing  the  volume  appro- 
priated should  be  in  approximate  accord  with  water- 
right  contracts,  or  with  the  average  volume  used  in 
irrigation.  This,  however,  is  seldom  the  case. 

Many  of  the  decrees  on  the  Arkansas  River  are 
based  on  an  arbitrary  duty  of  one  cubic  foot  per 
second  to  25  acres.  This  is  water  enough  to  cover 
land  to  a  depth  of  14  feet  during  the  legal  irriga- 
tion period  of  180  days,  or  28  feet  for  all  the  year. 
Many  of  the  appropriators  of  water  supply  their 
customers  with  enough  to  cover  the  land  to  a 
depth  of  only  2  feet.  In  the  adjudication  of  the 
Big  Thompson  River  a  referee  determined  the 
areas  irrigated  and  the  amounts  of  appropriations, 
and  in  his  findings  he  gave  the  first  appropriator 
one  cubic  foot  of  water  per  second  for  each  26 
acres  irrigated ;  the  second  appropriator  one  cubic 
foot  per  second  for  each  1 2  acres  irrigated ;  the 
third  appropriator  one  cubic  foot  per  second  for 
each  3  acres  irrigated  —  five  cubic  feet  per  second 
in  all  more  than  he  claimed ;  the  fourth  appro- 
priator received  one  cubic  foot  per  second  for  each 
34  acres  irrigated,  and  the  fifth,  one  cubic  foot  per 
second  for  each  13  acres  irrigated.  Recent  care- 
ful measurements  show  that  the  average  actual 
use  of  water  on  this  stream  is  only  one  cubic  foot 
per  second  for  each  187  acres  irrigated. 

An  examination  of  recent  decrees  shows  little 
improvement  in  this  particular.  One  cubic  foot 


IRRIGATION   INSTITUTIONS 

per  second  to  8  acres,  one  cubic  foot  per  second  to 
1 6  acres,  one  cubic  foot  per  second  to  50  acres,  one 
cubic  foot  per  second  to  38  acres,  one  cubic  foot 
per  second  to  44  acres,  one  cubic  foot  per  second 
to  3  acres,  are  the  awards  of  decrees  rendered 
within  the  past  ten  years. 

The  State  engineer's  reports  give  the  duty  of 
one  cubic  foot  of  water  per  second  as  from  80  to 
100  acres.  Many  water-right  contracts  provide 
for  the  delivery  of  one  cubic  foot  per  second  for 
each  80  acres  irrigated,  and  a  number  of  recent 
ones  for  only  2  acre-feet  of  water  to  the  acre. 
Hence  these  decrees  give  from  three  to  fifty  times 
the  water  actually  needed,  and  are  nearly  as  many 
times  in  excess  of  the  actual  average  use  in  the 
districts  where  they  were  rendered. 

It  is  hard  to  understand  why  in  a  matter  of  such 
importance  competent  engineering  advice  is  not 
sought  on  this  subject.  It  ought  to  be  sufficiently 
established  by  experience  that  the  statements  of 
irrigators  regarding  the  duty  of  water  cannot  be 
relied  upon,  even  when  they  are  made  hi  good 
faith.  In  one  instance  a  farmer  claimed  2000  in- 
ches for  320  acres  and  was  given  200  inches.  He 
reported  that  he  was  receiving  the  entire  amount 
claimed. 

In  many  of  the  earlier  decrees  the  rights  to 
water  granted  were  described  as  a  continuous  flow 
of  a  given  number  of  cubic  feet  per  second  of 
time.  The  irrigation  season  was  seldom  defined ; 
in  many  recent  decisions  it  has  been.  In  some 

154 


IRRIGATION  IN  COLORADO 


recent  decrees  rotation  in  nse  is  required.  In  one 
case  the  appropriator  is  declared  to  be  MitM^d  to 
water  ten  days  out  of  thirty-two.  While  the  water 
light  always  goes  to  the  owner  of  the  ditch,  die 
decree  sometimes  names  the  ditch  and  sometimes 
its  owner — sometimes  both. 

It  was  the  belief  of  the  framers  of  this  law  that 
a  single  adjudication  would  furnish  a  permanent 
basis  for  the  division  of  water  in  each  district,  and 
put  an  end  to  water-light  controversies.  That  it 
has  not  done  so  is  due  to  the  fact  that  the  rights 
established  have  no  relation  to  actual  necessities. 
The  water  commissioner  cannot  follow  the  decree; 
to  do  so  would  require  him  in  some  cases  to  turn 
more  water  into  «lfa'lMgE  than  they  will  carry.  It 
would  require  him,  in  other  cases,  to  give  irriga- 
tors  more  water  than  they  need,  and  at  the  same 
time  fh^figg  him  with  fin?  exceedingly  djcfiryf'c  ^wi 
troublesome  responsibility  of  preventing  waste. 
Every  decree  thus  far  rendered  is  no  sooner  put 
in  operation  than  its  disintegration  begins.  The 
holders  of  excess  rights  cast  about  for  means  to 
make  money  out  of  the  surplus.  Wherever  they 
can  extend  their  ditches,  they  do  so ;  where  they 
cannot,  they  sell  or  lease  a  part  of  the  appropria- 
tion to  later  ditches.  Every  extension  of  an  exist- 
ing ditch,  and  every  transfer  to  other  ditches, 
increases  the  volume  of  water  consumed  by  the 
early  priorities,  and  lessens  to  that  extent  the 
amount  available  for  later  ones.  In  time  this  takes 
the  water  away  from  the  farms  which  long  have 

'55 


IRRIGATION   INSTITUTIONS 

been  irrigated,  and  supplies  the  water  to  lands 
recently  reclaimed.  Orchards  which  have  come 
to  maturity,  and  farms  which  have  long  been  im- 
proved, find  the  rights  which  they  had  formerly 
exercised  shifted  to  new  areas  of  sage-brush  and 
cactus  plains.  These  evils  have  long  been  recog- 
nized by  practical  irrigators  and  by  lawyers  and 
judges. 

In  a  brief  before  the  State  supreme  court,  Judge 
Elliott,  an  ex-justice  of  that  court,  thus  forcibly 
describes  them :  — 

Excess  priority  decrees  are  a  crying  evil  in  the  State. 
From  every  quarter  the  demand  for  their  correction  is  strong 
and  loud.  Such  crying  demand  cannot  be  silenced  by  de- 
claring that  the  meaning  and  effect  of  such  decrees  can  never 
be  inquired  into,  construed,  or  corrected  after  four  years. 

In  many  cases  such  decrees  are  so  uncertain,  so  ambiguous, 
so  inequitable,  so  unjust,  and  their  continuance  is  such  a  hard- 
ship, that  litigated  cases  will  be  continually  pressed  upon  the 
attention  of  the  courts  until  such  controversies  are  heard  and 
settled,  and  settled  right.  Litigation  in  a  free  country  can 
never  end  while  wrongs  are  unrighted. 

Another  distinguished  irrigation  authority,  Mr. 
Platt  Rogers  of  Denver,  has  added  his  testimony 
in  the  same  direction  :  — 

The  decrees,  in  their  entirety,  are  falsehoods  and  univer- 
sally accepted  as  such.  They  furnish  a  fresh  illustration  of 
the  truism  that  "  a  lie  never  ceases  to  do  evil."  If  the  con- 
struction heretofore  placed  upon  them  in  some  cases  is  to 
prevail,  we  have  legalized  a  method  of  accomplishing  the  pre- 
cise thing  the  Constitution  intended  to  prevent,  viz.,  specula- 
tion in  water. 

156 


IRRIGATION   IN   COLORADO 

In  1889  a  commission  was  appointed  to  revise 
the  water  laws.  On  it  were  appointed  a  lawyer 
of  high  standing  at  the  Denver  bar,  an  ex-State 
engineer  and  one  of  the  State's  leading  canal 
managers.  They  found  little  to  change  in  the 
method  of  distributing  water  from  the  streams, 
but  in  speaking  of  the  results  of  adjudications 
clearly  summarized  their  defects :  — 

It  resulted  that  the  amount  of  water  to  which  the  several 
appropriators  of  the  works  of  diversion  were  entitled  was  as- 
certained and  determined  in  these  decrees  by  the  interested 
conjecture  of  those  proprietors ;  that  almost  invariably  the 
amount  awarded  largely  exceeded  —  sometimes  threefold  — 
the  carrying  capacity  of  the  ditch,  and  that  the  whole  volume 
of  the  stream  was  absolutely  adjudged  to  the  junior  appropria- 
tors upon  the  upper  parts  of  the  stream,  in  proceedings  to 
which  the  senior  appropriators  in  the  lower  parts  of  the  stream 
were  not  parties  —  where  they  had  neither  right  nor  oppor- 
tunity to  be  heard.  The  decrees,  therefore,  instead  of  afford- 
ing, as  was  intended,  a  just,  true,  and  absolute  measure  of  the 
rights  of  all  appropriators  for  irrigation,  are,  in  fact,  false  and 
misleading,  even  as  to  those  who  participated  in  the  inquiry 
upon  which  they  are  founded,  and  absolutely  void  as  to  all 
others.1 

Outside  of  two  or  three  districts  none  of  the 
Colorado  decrees  describe  the  land  to  be  irrigated. 
The  water  commissioners  cannot  tell  whether  water 
is  being  applied  on  the  lands  where  first  used  or 
exercise  effective  action  in  preventing  waste. 

The  State  engineer  and  water  commissioners 
have  difficulties  enough  in  dividing  the  constantly 

1  Report  of  Commission  appointed  to  revise  Water  Laws  of 
Colorado,  p.  7. 

157 


IRRIGATION    INSTITUTIONS 

varying  flow  of  streams  when  the  place  where  the 
water  is  to  be  used  is  fixed  and  unchangeable,  but 
in  Colorado  their  chief  source  of  trouble  is  the  at- 
tempt to  make  use  of  the  extravagant  rights  granted 
in  the  early  decrees,  which  leads  to  constant  sales 
of  surplus  rights  and  to  constant  attempts  to  trans- 
fer rights  from  one  piece  of  land  to  another. 
Speaking  of  this,  the  Hon.  A.  J.  McCune,  State 
engineer,  in  his  last  report  said :  — 

It  appears  to  us  that  the  most  serious  question  connected 
with  irrigation  is  the  unstable  condition  of  our  water  rights. 
In  many  instances,  as  the  communities  depending  on  irriga- 
tion grow  older,  complications  seem  to  increase  rather  than 
decrease.  .  .  .  Many  of  our  troubles  have  arisen  from  care- 
lessness in  issuing  decrees  and  by  overappropriations,  the 
present  method  being  a  kind  of  grab  game  without  the  neces- 
sary public  supervision. 

This  situation  deserves  careful  consideration,  not 
only  from  irrigators  in  Colorado,  but  in  the  other 
States.  It  raises  the  question  as  to  whether  the 
evil  of  excess  decrees  is  wholly  due  to  lack  of  ex- 
perience or  is  the  result  of  a  defective  method  of 
establishing  rights.  The  latter  is  believed  to  be 
the  truth.  It  is  believed  that  if  the  determination 
of  water  rights  was  intrusted  to  a  body  of  trained 
irrigation  experts,  who  had  a  practical  knowledge 
of  the  subject  and  who  would  familiarize  them- 
selves by  personal  investigation  with  the  use  of 
water  on  every  stream  where  rights  are  to  be 
established,  the  results  would  be  far  superior  to 
anything  which  is  possible  under  the  present  plan. 

158 


IRRIGATION   IN   COLORADO 

The  present  system  requires  judges  to  determine 
matters  that  ought  to  be  settled  by  water  commis- 
sioners. The  errors  are  not  of  law  but  of  facts, 
and  judges  ought  not  to  be  required  to  perform 
the  duties  of  irrigators  or  hydraulic  engineers. 

If,  however,  the  laws  of  Colorado  require  rights 
to  be  established  in  the  court,  these  decrees  should 
be  preceded  by  a  preliminary  investigation  made 
under  the  direction  of  the  State  engineer.  If  he 
measured  the  ditches,  determined  the  acreage  of 
land  irrigated  and  the  amount  of  the  water-supply, 
and  made  an  approximate  estimate  of  the  quantity 
of  water  required  for  an  acre,  the  excess  decrees  of 
the  past  would  be  unnecessary  if  not  impossible. 

Administration  of  Streams 

The  State  engineer  and  his  assistants  control  the 
division  of  streams  among  irrigators.  The  office 
of  State  engineer  was  created  in  the  act  of  1879, 
which  divided  the  State  into  water  districts  based 
on  drainage  lines.  In  fixing  the  boundaries  of  dis- 
tricts, the  aim  was  to  have  each  one  include  enough 
territory  to  justify  the  appointment  of  a  commis- 
sioner, and  no  more  than  one  man  could  effectively 
supervise.  The  number  of  ditches  rather  than  the 
square  miles  of  land  was  the  thing  to  be  considered. 
It  was  necessary  that  there  should  be  no  more  head- 
gates  than  the  commissioner  could  regulate  in  times 
of  scarcity,  and  this  made  it  necessary  to  divide 
some  rivers  into  sections,  and  to  make  the  tribu- 
taries independent  districts. 


IRRIGATION   INSTITUTIONS 

Each  important  drainage  basin  in  Colorado  is 
made  a  water  division,  and  a  division  superintendent 
has  general  direction  of  the  diversion  of  water  within 
its  boundaries.  In  each  district  the  division  of 
water  is  looked  after  by  a  water  commissioner,  who 
is  subject  to  the  orders  of  the  division  superin- 
tendent. The  boundaries  of  districts  are  changed 
from  time  to  time  by  the  legislature.  Being 
governed  by  drainage  lines,  they  do  not  agree  with 
either  county  lines  or  judicial  districts.  The  law 
grouping  these  districts  into  divisions  was  passed 
in  1887,  in  order  to  avoid  a  repetition  of  troubles 
which  arose  in  the  summer  of  1886  over  the  division 
of  water  among  the  districts  along  the  South 
Platte  River.  This  river  had  been  divided  into 
three  districts,  which  cut  the  stream  into  three 
sections.  Each  of  these  was  independent  of  the 
others  both  in  the  adjudication  of  appropriations 
and  in  the  division  of  water  by  commissioners.  It 
followed  that  the  district  farthest  up  the  stream 
had  the  best  water-supply,  and  its  commissioner 
refused  to  recognize  the  claim  of  the  older  appro- 
priators  in  the  districts  below.  As  there  was  no 
law  for  the  division  of  water  between  districts,  the 
State  engineer  was  confronted  by  as  perplexing  a 
question  as  the  later  problem  of  the  division  of 
water  across  State  lines.  The  law  which  ended 
this  complication  made  it  the  duty  of  the  division 
superintendent  to  procure  certified  copies  of  each 
decree  establishing  rights  to  water  in  his  division, 
and  from  these  decrees  prepare  a  list  of  priorities 
160 


IRRIGATION   IN   COLORADO 

of  all  the  ditches,  canals,  and  reservoirs,  retaining 
the  dates  of  their  original  appropriations  and  giv- 
ing them  consecutive  numbers  in  accordance  with 
these  dates  and  without  regard  to  their  priority 
numbers  in  the  water  district  taken  alone. 

The  adjustment  of  existing  rights  under  this  law 
and  the  renumbering  of  priorities  in  each  division 
so  as  to  make  them  consecutive  was,  in  the  older 
irrigated  districts,  a  momentous  undertaking  be- 
cause of  the  changes  it  wrought  in  the  value  of 
rights.  Those  injured  contested  the  validity  of  the 
law  and  the  justice  of  the  superintendent's  action. 
This  was  not,  however,  an  objection  to  the  measure. 
It  only  showed  the  ingenuity  and  persistence  of 
those  who  sought  to  retain  benefits  conferred  upon 
them  by  the  imperfections  of  the  earlier  law. 

At  present  Colorado  is  divided  into  six  water 
divisions  and  seventy  water  districts.  The  admin- 
istrative officers  of  this  system  are  all  appointed  by 
the  governor  for  terms  of  two  years.  The  State 
engineer  is  the  head  of  the  system ;  the  six  division 
superintendents  direct  the  work  of  water  commis- 
sioners in  the  districts  of  their  divisions,  while  the 
water  commissioners  are  subordinate  to  both  the 
water  superintendents  and  the  State  engineer. 

None  of  the  irrigation  officials  interfere  with  the 
use  of  water  until  called  upon  by  some  appropriator 
whose  rights  are  being  interfered  with.  This  is 
done  by  a  written  application  to  the  water  com- 
missioner, or  the  division  superintendent,  asking 
for  a  protection  of  rights.  The  water  commissioner 
M  161 


IRRIGATION    INSTITUTIONS 

has  to  act  when  he  receives  such  a  petition  and 
becomes  an  arbiter  who  prevents  many  neighbor- 
hood feuds  and  greatly  lessens  the  discord  and 
anxiety  of  water  users. 

Whenever  the  water  commissioner  is  called  out, 
he  has  to  report  to  the  superintendent  the  time 
when  he  begins  his  work  and  the  time  when  his 
duties  cease.  The  superintendent  can,  however, 
call  out  water  commissioners  whenever  he  deems 
it  necessary.  In  addition  to  the  regular  reports 
as  to  time  of  service,  the  water  commissioner  is 
also  required  to  make  reports  concerning  the  gen- 
eral condition  of  irrigation  within  his  district,  these 
reports  to  include  the  following  information :  — 

(a)  The  amount  of  water  needed  to  supply  all  ditches  and 
reservoirs  in  his  district,  meaning,  of  course,  under  each  stream 
in  the  district. 

(£)  The  amount  of  water  coming  into  the  district  to  supply 
such  needs. 

(c}  Whether  the  water-supply  is  on  the  increase  or  de- 
crease. 

(W)  What  ditches  or  reservoirs  are,  at  the  time  of  the  report, 
inadequately  supplied. 

(e)  The   probability  concerning  the  supply  prior  to  the 
next  report. 

(f)  Such  other  and  further  information  as  the  superintend- 
ent of  irrigation  of  that  division  may  suggest. 

In  1889  the  law  relating  to  water  commissioners 
was  modified,  greatly  extending  their  duties.  The 
commissioner  is  invested  with  the  powers  of  making 
arrest  of  any  person  violating  his  orders  relative  to 
the  opening  or  closing  of  the  head-gates  and  of 

162 


IRRIGATION   IN   COLORADO 

prosecuting  offenders  before  the  justice  of  the 
peace.  He  is  also  authorized  to  employ  suitable 
assistants,  and  his  duties  are  extended  to  exercising 
a  guardianship  over  the  streams  of  his  district, 
keeping  them  clear  of  obstructions,  etc.,  and  he  is 
made  subject  to  fine  for  a  failure  to  perform  his 
duties. 

In  1897  the  duties  of  the  water  commissioners 
were  still  further  extended  to  a  supervision  of  ex- 
changes of  water  from  one  public  stream  to  an- 
other, and  between  reservoirs  and  canals.  In 
order  to  facilitate  the  performance  of  these  duties, 
those  making  such  transfers  are  required  to  con- 
struct and  maintain  measuring  flumes  or  weirs  in 
connection  with  self -registering  devices  which  will 
keep  a  continuous  record  of  the  water  flowing 
through  them.  In  this  way  the  water  commis- 
sioner can  be  kept  informed  of  what  is  taking 
place  when  he  is  not  present. 

In  1 899  authority  was  conferred  on  appropri- 
ators  to  exchange  or  loan  water  for  a  limited  time, 
and  for  making  permanent  changes  in  the  point 
of  diversion.  The  water  commissioner  is  required 
to  recognize  these  changes,  and  to  enforce  the 
agreements  under  which  they  are  made.  It  will 
thus  be  seen  that  the  water  commissioner  is  the 
most  important  officer  with  whom  the  Colorado 
farmer  comes  in  contact.  The  efficient  discharge 
of  the  duties  imposed  upon  him  requires  firmness, 
energy,  hard  work,  and  more  than  average  judg- 
ment. He  has  to  deal  with  a  constantly  fluctuat- 
163 


IRRIGATION   INSTITUTIONS 

ing  water-supply;  he  has  to  determine  whether 
or  not  water  is  being  used  with  economy ;  he  has 
even  to  exercise  discretion  as  to  how  the  relief  of 
suffering  appropriators  can  be  best  afforded.  On 
his  action,  and  in  many  instances  on  his  tact  and 
judgment,  the  peace  and  harmony  of  the  neigh- 
borhood depends.  He  more  than  any  other  indi- 
vidual or  official  can  promote  economy  in  the  use 
of  water  and  extend  the  acreage  of  crops  which 
are  brought  to  maturity.  All  of  the  other  steps 
under  the  Colorado  irrigation  code  are  simply  pre- 
paratory to  the  work  of  the  water  commissioner. 
It  is  only  when  codes  provide  for  the  enforcement 
and  protection  of  rights  by  some  such  official  that 
water  titles  can  be  considered  as  having  a  stable 
and  definite  value. 

Although  the  State  engineer  and  division  super- 
intendents do.  not  come  so  directly  in  contact  with 
the  farmer,  there  is  equal  need  of  their  possessing 
the  same  kind  of  qualifications.  To  one  or  both 
are  always  referred  the  troublesome  cases  where 
the  action  of  the  water  commissioner  is  contested. 
The  duties  of  the  State  engineer  are  numerous. 
Besides  having  charge  of  State  engineering  work 
and  acting  as  adviser  in  that  capacity  for  the  dif- 
ferent departments,  he  is  the  head  of  the  irrigation 
administration,  to  whom  appeal  may  be  made  from 
commissioners  and  superintendents.  He  has  super- 
vising control  over  the  public  waters,  makes  meas- 
urements of  the  flow  of  the  streams,  collects  data 
on  irrigation  works,  canals,  reservoirs,  and  under- 

164 


IRRIGATION   IN    COLORADO 

ground  water-supplies,  as  well  as  on  the  snow  fall, 
and  estimates  the  probable  supply  of  water  from 
that  source.  Designs  and  plans  for  dams  in  excess 
of  ten  feet  in  height  are  subject  to  his  approval. 
He  furnishes  the  commissioners  and  superintend- 
ents data  and  information  for  the  proper  and  in- 
telligent discharge  of  their  duties;  requires  the 
owners  to  supply  ditches  with  measuring  devices, 
and  superintends  their  construction,  rates  the 
flumes,  and  in  addition  collects  statistics  of  crops 
and  the  water  used  in  the  different  ditches. 

The  superintendent  of  a  division  has  general 
control  over  the  water  commissioners  in  his  di- 
vision. He  has  to  determine  whether  loans  or  ex- 
changes of  water  will  impair  the  rights  of  other 
appropriators  or  whether  they  shall  be  recognized, 
but  his  main  duty  is  to  regulate  the  flow  of  water 
into  and  from  each  district,  so  that  priorities  shall 
be  protected  in  their  respective  order  in  the  differ- 
ent districts  throughout  his  entire  division. 

The  commissioners  report  to  him  each  week  the 
names  of  ditches  drawing  water,  and  if  the  supply 
runs  short,  make  a  request  for  water ;  and  when  it 
occurs  that  ditches  of  a  later  date  in  the  district 
next  above  are  receiving  water,  the  superintendent 
orders  such  ditches  closed  and  the  water  sent  down 
to  the  older  appropriators  below.  In  distributing 
water  between  districts,  much  must  always  depend 
upon  the  discretion  of  the  superintendent  as  to 
what  tributaries  shall  be  called  upon  to  supply 
the  main  stream,  in  order  that  the  relief  of  those 

165 


IRRIGATION    INSTITUTIONS 

having  superior  rights  may  be  afforded  with  the 
least  disturbance  to  other  appropriators.  In  theory, 
the  last  appropriator  should  be  the  first  to  be  cut  off, 
but  in  practice  it  often  happens  that  this  appro- 
priator is  fifty  or  one  hundred  miles  away,  while 
another  appropriator,  inferior  to  the  one  seeking 
relief,  is  near  at  hand.  To  wait  for  water  to  come 
from  turning  off  the  last  appropriator  might  cause 
the  loss  of  crops,  and  in  practice  it  is  often  the 
junior  appropriator  who  can  be  first  reached  whose 
water-supply  is  curtailed. 

The  administration  of  irrigation  laws  in  Colorado 
has  been  one  in  which  the  State  can  take  just  pride. 
The  State  engineer's  office  has  been  filled  from  the 
first  by  men  conspicuous  in  their  profession  for 
honesty,  tact,  and  ability.  The  water  superintend- 
ents and  commissioners  have  performed  their  ar- 
duous, and  oftentimes  thankless,  tasks  with  justice 
and  efficiency.  Much  of  the  preeminence  which 
the  State  now  enjoys  is  due  to  the  ability  and  disin- 
terestedness with  which  the  water  laws  have  been 
administered.  It  was  a  piece  of  rare  good  fortune, 
both  for  Colorado  and  the  West,  that  the  first  ad- 
ministrative system  was  put  in  force  under  the 
direction  of  Colonel  E.  S.  Nettleton,  who  won  a 
national  reputation  as  an  irrigation  engineer  and 
administrator  of  irrigation  works.  It  required  all 
his  tact  and  influence  to  bring  about  the  accept- 
ance of  public  control,  and  put  an  end  to  the  jeal- 
ousies of  rival  ditchowners  and  the  fears  of  hostile 
communities.  Those  who  live  under  the  laws  as 
166 


IRRIGATION    IN    COLORADO 

they  are  administered  to-day  cannot  realize  the 
difficulties  which  beset  those  who  blazed  out  the 
new  trail. 

The  administrative  features  of  the  Colorado  law 
have  been  largely  copied  in  both  Wyoming  and 
Nebraska,  and  have  worked  equally  well  in  those 
States.  But  both  these  States  have  surpassed  Col- 
orado in  their  method  of  establishing  water  titles, 
and  in  other  features  of  their  irrigation  codes. 

The  water  deeds,  or  water-right  contracts,  of  most 
of  the  Colorado  ditch  companies  tend  to  promote 
economy  in  the  use  of  water.  While  this  is  done 
in  the  interest  of  the  ditch  company  rather  than  to 
promote  the  general  welfare,  it  nevertheless  has 
the  latter  result.  The  definition  of  the  irrigation 
period,  contained  in  most  of  these  contracts,  is  a 
sensible  one,  and  it  is  an  excellent  thing  to  have 
the  period  defined.  The  land  to  be  irrigated  is 
described,  and  the  water  right  is  attached  to  the 
land  —  another  excellent  feature.  The  rights  of 
farmers  are  limited  to  economical  use.  They  are 
given  no  surplus  water  to  rent  or  sell  in  times  of 
scarcity.  All  these  are  good  features,  and  should 
have  been  incorporated  in  the  original  appropria- 
tions. If  the  water  of  streams  is  public  property, 
the  public  should  show  the  same  business  ability 
in  disposing  of  its  property  as  those  to  whom  its 
control  is  transferred.  Colorado  can  learn  some- 
thing about  the  management  of  the  water  of  streams 
by  studying  how  canal  companies  dispose  of  the 
water  which  they  appropriate. 

167 


IRRIGATION   INSTITUTIONS 

The  county  commissioners  of  the  different  coun- 
ties in  Colorado  are  given  power  to  fix  water  rates 
where  ditch  companies  charge  an  annual  rental. 
The  laws  of  Colorado  also  prohibit  charging  a 
bonus  for  the  privilege  of  purchasing  water  from 
a  canal  company,  and  the  requiring  by  those  com- 
panies of  advance  payment  of  water  rentals.  Any 
one  who  has  been  furnished  water  and  paid  the 
rental  therefor  can  compel  the  company  furnish- 
ing it  to  continue  to  do  so  forever  thereafter  on 
tendering  the  rental  charged. 

These  rental  laws  are  not  looked  upon  with  favor 
by  companies  having  large  appropriations  of  water, 
hence  most  of  the  water-right  contracts  now  being 
made  fall  under  the  second  plan  described  in 
Chapter  V.  While  nearly  all  of  these  con- 
tracts provide  for  the  transfer  of  the  ditch  and 
its  appropriations  at  some  future  date  to  the  pur- 
chaser of  the  water  rights,  the  stipulations  concern- 
ing these  are  so  indefinite  that  the  farmers  cannot 
compel  the  transfer ;  and  there  have  been  but  few 
instances  thus  far  where  the  management  of  these 
works  has  fallen  into  their  hands.  There  is  no 
question,  however,  that  it  would  be  a  gain  for  all 
concerned  if  farmers  could  have  the  management 
of  the  works  which  supply  their  farms,  and  if  all 
the  ditch  companies  in  Colorado  could  become  co- 
operative enterprises.  It  is  believed  that  this  is 
what  will  ultimately  happen,  and  when  the  owners 
of  ditches  cease  to  act  as  middlemen  between  the 
State  and  the  farmer,  the  irrigation  system  of 
168 


IRRIGATION   IN   COLORADO 

Colorado  will  be  relieved  from  its  most  serious 
menace. 

Colorado  leads  all  the  arid  States  in  the  con- 
struction of  reservoirs.  In  the  two  years  ending 
December  I,  1900,  147  permits  for  the  construction 
of  these  works  were  issued  by  the  State  engineer. 
The  plans  submitted  include  every  type  of  storage 
work.  Some  are  to  regulate  the  flow  of  rivers  by 
constructing  dams  in  their  channels.  Others  pro- 
pose to  fill  natural  basins  situated  in  the  midst  of 
the  land  to  be  irrigated.  Some  of  these  reservoirs 
are  remote  from  the  lands  to  be  irrigated.  The 
stored  water  has  to  be  turned  into  the  natural 
channel  and  mingled  with  the  natural  flow  of  the 
stream,  and  be  carried  many  miles  from  the  place 
of  storage  to  the  place  of  use,  and  its  delivery 
requires  the  regulation  of  numerous  head-gates  in 
order  that  it  may  be  delivered  to  the  canal  owning 
the  reservoir  or  purchasing  the  water  it  impounds. 
The  increase  in  the  number  of  storage  works  in 
Colorado  has  been  accompanied  by  an  equally  in- 
teresting and  not  less  important  growth  in  laws 
and  customs  to  govern  the  use  of  this  stored 
water. 

The  ability  to  obtain  a  late  water-supply  through 
storage  has  also  led  to  a  change  in  the  character 
of  Colorado's  agriculture  which  has  amounted 
almost  to  a  revolution.  When  irrigation  began, 
wheat  and  native  hay  were  the  principal  irrigated 
crops.  They  require  water  only  during  the  early 
part  of  the  season  or  during  the  time  when  streams 
169 


IRRIGATION   INSTITUTIONS 

carry  the  most  water.  These  crops  could  be  brought 
to  maturity  before  the  water-supply  fell  off,  and 
there  was  little  need  of  storing  water  for  use  during 
the  later  part  of  the  season.  All  this  was  changed 
by  the  introduction  of  diversified  farming  and  the 
growing  of  high-priced  products.  The  irrigation 
of  orchards  requires  the  use  of  as  much  water  in 
November  as  in  May.  Alfalfa,  potatoes,  and  small 
fruits  all  require  late  irrigation. 

These  changes  have  added  greatly  to  the  returns 
from  the  cultivation  of  irrigated  land  and  to  its 
value,  but  they  also  make  a  greatly  increased  de- 
mand for  a  late  water-supply.  This  cannot  be 
provided  from  the  natural  flow  of  streams.  When 
the  snows  of  the  mountains  of  Colorado  disappear, 
the  waters  of  its  rivers  shrink  not  slowly,  but  sud- 
denly. The  irrigator  who  quits  work  Saturday 
night  with  all  the  water  he  needs,  often  finds  when 
he  attempts  to  resume  his  labors  on  Monday  that 
his  ditch  is  empty.  After  July  15  the  pioneer 
appropriators  control  the  water  of  most  streams. 
There  is  not  enough  left  for  the  large  late  ditches 
to  keep  alive  shade  trees  and  orchards,  much  less 
to  mature  even  their  more  valuable  farm  crops. 
Farmers  have  seen  their  crops  ruined  for  the  lack 
of  water  which  ran  to  waste  less  than  a  fortnight 
before,  and  have  set  about  to  remedy  this  by  hold- 
ing back  the  surplus  water-supply  of  the  early  part 
of  the  season  by  means  of  storage  reservoirs. 

Appropriations  of  water  for  storage  purposes  are 
inferior  to  those  for  direct  irrigation.  Recent  deci- 
170 


IRRIGATION    IN    COLORADO 

sions  of  the  supreme  court  seem  to  make  this  an 
established  principle  of  the  Colorado  irrigation  sys- 
tem. In  some  respects  this  is  a  true  economic 
policy,  because  it  would  be  a  waste  of  money  to 
store  water  which  could  be  used  directly  on  the 
crops ;  but  on  the  other  hand  the  water  would  have 
a  far  greater  value  if  it  could  be  stored  and  used 
on  high-priced  crops  which  require  late  irrigation. 
Under  the  existing  system,  however,  reservoirs 
must  be  filled  and  replenished  when  there  is  a 
surplus  in  the  stream.  They  can  only  take  water 
when  it  is  not  immediately  needed  by  irrigators 
under  ditches. 

The  growth  of  reservoir  construction  is  making 
the  establishment  of  priorities  and  the  amounts  of 
appropriations  for  these  works  but  little  inferior 
in  importance  to  the  original  appropriations  for 
ditches.  They  are  established  in  the  same  man- 
ner, through  decrees  of  the  district  court,  and  the 
priorities  between  reservoirs  are  recognized  and 
enforced  by  the  water  commissioner  exactly  as 
he  divides  the  natural  flow  of  streams  between 
ditches. 

The  beginning  of  reservoir  construction  was  de- 
layed somewhat  by  legal  and  economic  obstacles. 
Many  of  the  natural  sites  are  so  located  that  they 
cannot  be  made  to  serve  the  lands  lying  under  the 
ditches  which  fill  them.  They  are  high  enough 
to  irrigate  lands  under  other  ditches,  but  without 
some  agreement  with  the  owners  of  low-lying  lands 
the  ditches  which  supply  these  lands  with  water 
171 


IRRIGATION   INSTITUTIONS 

could  not  be  utilized.  What  was  necessary  was  a 
system  of  exchanges  of  water,  by  which  the  upper 
ditch  could  throw  the  water  stored  in  its  reservoirs 
into  the  lower  ditches  and  be  permitted  to  take  in 
lieu  thereof  an  equivalent  amount  of  water  from 
the  stream.  A  system  of  transfers  of  this  kind 
has  been  worked  out.  At  first  it  was  based  only 
on  custom  and  neighborhood  agreement,  but  later 
it  was  sanctioned  by  law  and  is  an  important  con- 
tribution to  irrigation  legislation,  not  only  in  Colo- 
rado, but  as  an  example  in  other  States. 

There  are  nearly  fifty  reservoirs  in  the  valley 
of  the  Poudre  River,  and  about  an  equal  number 
in  the  valley  of  the  Big  Thompson.  The  greater 
part  of  the  water  they  hold  is  used  on  the  lands  of 
others  than  their  owners.  Many  of  the  early  pri- 
orities on  these  rivers  are  along  the  lower  part  of 
the  streams.  The  reservoirs  are  filled  from  ditches 
on  the  upper  part.  The  owners  of  the  reservoirs 
supply  the  ditches  further  down-stream  with  stored 
water,  and  in  return  therefor  are  given  permission 
to  use  the  natural  flow.  To  carry  out  these  ex- 
changes, however,  requires  a  more  accurate  meas- 
urement of  water  than  prevailed  when  there  was 
nothing  to  be  done  but  divide  the  stream  itself 
among  the  canals.  The  people  who  exchange 
stored  water  for  water  from  the  river  see  to  it  that 
they  furnish  no  more  than  they  get  in  return,  and 
the  holders  of  rights  in  the  stream  other  than  those 
concerned  in  these  exchanges  are  also  on  the  alert 
to  see  that  they  are  not  robbed  by  these  transac- 
172 


IRRIGATION   IN   COLORADO 

tions.  This  renders  it  necessary  that  the  water 
taken  from  the  river  and  the  water  turned  out  of 
reservoirs  and  into  ditches  shall  be  accurately  meas- 
ured by  some  disinterested  authority.  In  order  to 
insure  this,  the  law  has  made  the  water  commis- 
sioner a  sort  of  public  gauger  who  superintends 
these  transfers  and  keeps  a  public  record  of  all 
exchanges. 

Two  important  changes  were  made  in  the  Colo- 
rado irrigation  code  in  1899.  One  relates  to  the 
sale  of  appropriations  of  water  by  one  ditch  com- 
pany to  another  and  the  transfer  of  the  point  of 
diversion  from  the  stream.  The  other  gives  ap- 
propriators  the  right  to  loan  water  to  others  in 
times  of  scarcity. 

Sales  of  Appropriations 

Although  the  right  to  sell  appropriations  and 
transfer  them  from  the  ditches  where  first  acquired 
to  other  ditches,  and  to  transfer  water  from  the 
land  where  first  used  to  other  places  and  other 
uses,  has  always  been  claimed,  it  has  always  been 
disputed  and  has  been  the  cause  of  much  litiga- 
tion. This  law  promises  to  lessen  these  controver- 
sies by  requiring  that  these  transfers  shall  be  made 
under  a  specific  procedure.  Heretofore  they  could 
be  made  without  any  legal  formality.  After  they 
had  been  made  it  was  always  difficult  to  set  them 
aside,  and  an  attempt  to  do  this  imposed  on  other 
appropriators  a  constant  and  grievous  expense  in 


IRRIGATION    INSTITUTIONS 

maintaining  contests.  Now  these  sales  can  only  be 
made  on  the  approval  of  the  district  court. 

Some  objection  has  been  made  because  such 
transfers  will  involve  a  large  outlay  in  present- 
ing the  matter  to  the  court.  But  aside  from  this 
the  measure  is  destined  to  work  much  good.  It 
will  lessen  the  opportunity  to  give  speculative  value 
to  excess  appropriations.  If  sales  of  appropria- 
tions are  to  be  recognized  at  all,  it  should  be  only 
after  careful  investigation. 

Arguments  in  favor  of  these  transfers  are  that 
they  will  promote  a  more  economical  use  of  water 
through  the  consolidation  of  appropriations,  that 
they  will  permit  of  the  closing  up  of  numerous 
small  ditches,  and  the  diversion  of  the  water-supply 
in  a  few  large  canals.  In  other  words,  it  is  the 
trust  argument  applied  to  the  control  of  rivers.  If 
in  these  transfers  the  tracts  of  land  from  which 
the  water  is  taken  were  described,  and  if  it  were 
applied  to  no  greater  acreage  elsewhere  but  simply 
to  better  land  or  in  a  more  saving  manner,  there 
would  be  no  objection ;  but  so  far  as  the  writer's 
observation  has  gone  this  is  not  the  moving  purpose 
of  these  sales.  In  every  instance  investigated  the 
real  purpose  has  been  to  make  money  out  of  excess 
appropriations.  The  parties  who  have  acquired 
surplus  rights  are  unable  to  use  the  water  them- 
selves, and  seek  to  sell  to  some  one  who  can.  The 
primary  object  is  not  economy,  although  this  some- 
times results.  The  usual  result  is  to  take  as  much 
water  away  from  one  user  as  is  supplied  to  another. 


IRRIGATION    IN    COLORADO 

The  objection  to  sales  of  appropriations  does 
not  apply  to  the  law  which  recognizes  exchanges 
of  water  between  reservoirs  and  ditches.  Here 
there  is  an  undoubted  gain,  both  to  public  and 
private  interests.  It  is  a  recognition  of  natural 
needs  and  gives  the  sanction  of  law  to  the  most 
convenient  and  effective  means  of  putting  to  the 
best  use  the  ditches  already  built,  and  of  storing 
the  surplus  water  in  the  most  convenient  and 
economical  manner. 

Loans  of  Appropriations 

Section  3 1  of  the  act  of  1 899  has  been  the  sub- 
ject of  discussion,  of  litigation,  of  praise,  and  of 
blame  ever  since  its  enactment.  Opinions  of 
men  regarding  both  its  purpose  and  its  results 
seem  to  depend  on  whether  they  are  benefited 
or  injured  by  its  operation.  It  is  difficult 
for  one  to  form  a  definite  opinion  regarding  its 
merits  from  the  statements  of  either  writers  or 
officials.  The  strongest  commendation  which  has 
come  under  the  writer's  notice  is  that  of  ex-State 

1  Sec.  3.  It  shall  be  lawful,  however,  for  the  owners  of  ditches 
and  water  rights  taking  water  from  the  same  stream,  to  exchange 
with,  and  loan  to,  each  other,  for  a  limited  time,  the  water  to  which 
each  may  be  entitled,  for  the  purpose  of  saving  crops  or  of  using 
the  water  in  a  more  economical  manner  ;  Provided,  that  the  owner 
or  owners  making  such  loan  or  exchange,  shall  give  notice  in  writ- 
ing signed  by  all  the  owners  participating  in  said  loan  or  exchange, 
stating  that  such  loan  or  exchange  has  been  made,  and  for  what 
length  of  time  the  same  shall  continue,  whereupon  said  water 
commissioner  shall  recognize  the  same  in  his  distribution  of  water. 

Approved  April  6,  1899.     (Session  Laws,  1899,  p.  236.) 

*75 


IRRIGATION   INSTITUTIONS 

engineer  Greene,  who  says  :  "  This  growing  custom 
of  loaning  water  is  not  only  a  great  step  toward 
the  solution  of  some  of  our  irrigation  problems, 
but  is  of  value  as  an  indication  of  the  attitude  of 
the  people  of  the  valley  toward  the  solution  of  such 
questions.  When  the  people  under  some  ditches 
voluntarily  deprive  themselves  of  water  to  which 
under  decrees  they  are  entitled,  for  the  purpose  of 
having  those  waters  applied  to  the  saving  of  crops 
under  other,  perhaps  rival,  ditches,  they  give  prom- 
ise of  a  very  high  order  of  irrigation  development. 
This  voluntary  loaning  of  water,  which  always 
involves  some  losses  on  the  part  of  those  making 
such  loans,  is  a  very  forcible  expression  of  the 
desire  that  not  a  man  in  the  Arkansas  Valley  shall 
lose  his  crops  for  the  lack  of  water." 

Mr.  Greene  is  one  of  the  most  careful  and 
accomplished  students  of  irrigation  questions  in 
this  country,  and  his  opinion  is  entitled  to  great 
weight.  His  commendation  is  confined  to  the 
Arkansas  Valley,  and  what  he  says  is  doubtless  true 
of  some  sections  on  that  stream  where  the  ditches 
are  small  or  where  the  appropriations  of  water 
were  acquired  by  farmers;  but  there  are  other  sec- 
tions on  the  Arkansas  River  and  on  other  streams 
where  a  different  condition  of  affairs  exists,  where 
appropriations  of  water  do  not  belong  to  owners 
of  the  irrigated  farms  but  to  ditch  companies,  and 
where  the  farmers  do  not  obtain  their  water-supply 
by  appropriating  it  but  by  the  purchase  of  a  water 
deed  or  water  contract  from  the  appropriator.  It 
176 


IRRIGATION    IN    COLORADO 

is  these  companies  and  not  farmers  who  are  loan- 
ing their  appropriations.  Nor  do  they  confine 
their  loans  to  the  water  they  would  otherwise  use. 
What  they  prefer  to  do  and  what  they  are  attempt- 
ing to  do  is  to  loan  the  water  which  they  do  not 
need,  and  by  so  doing  put  parties  having  late  pri- 
orities in  the  place  of  the  holders  of  earlier  rights 
who  would  otherwise  receive  it. 

In  a  recent  lawsuit  growing  out  of  one  of  these 
transfers  on  the  Arkansas  River,  before  Judge 
Voorhees  of  the  tenth  judicial  district,  the  follow- 
ing facts  were  admitted  :  — 

(1)  That  the  Fort  Lyons  Canal  Company,  plain- 
tiff, has  appropriated  761.8  cubic  feet  of  water  per 
second  of  time. 

(2)  That  of  the  four  defendants  the  Arkansas 
Valley  Company  had  appropriated  70  cubic  feet 
of  water  per  second  of  time ;    the   Twin    Lakes 
Company  had  appropriated   756.28  cubic   feet  of 
water  per  second  of  time  ;  the  Catlin  Company  had 
appropriated  248  cubic  feet  of  water  per  second 
of  time  ;  the  Laguna  Canal  Company  had  appro- 
priated 155  cubic  feet  of  water  per  second  of  time. 

It  will  be  seen  that  the  aggregate  of  these  five 
appropriations  is  1991  cubic  feet  per  second,  which 
is  far  more  than  the  average  flow  of  the  river. 
None  of  these  appropriators  are  farmers.  All  are 
companies  which  have  appropriated  water  to  sell 
to  farmers,  and  in  each  case  the  contracts  under 
which  they  sell  it  describe  the  land  on  which  the 
water  is  to  be  used  and  give  the  farmers  only  jthe 
N  177 


IRRIGATION    INSTITUTIONS 

amount  they  need,  so  they  have  no  surplus  to  loan. 
The  loans  objected  to  were  not  evidence  of  a 
neighborly  feeling  between  farmers,  because  farm- 
ers had  nothing  to  do  with  them.  They  were 
simply  commercial  transactions  in  water  between 
four  large  corporations. 

It  was  admitted  that  at  the  dates  of  loaning  the 
water,  the  two  companies  which  made  the  loans 
had  no  present  need  for  the  water,  and  that  mak- 
ing these  loans  did  not  involve  any  sacrifice  to  the 
lenders.  They  did  not  promote  economy  nor 
good  feeling.  The  farmers  under  the  ditch  which 
brought  the  suit  to  prevent  the  loan,  would  have 
used  the  water  as  savingly  as  those  who  received 
it. 

The  injunction  sought  was  refused,  the  court 
upholding  the  law  on  the  ground  that  a  priority 
of  right  to  the  use  of  water  in  Colorado  "  is  a  prop- 
erty right  with  all  the  incidents  of  property  to  its 
decreed  amount."  In  one  of  the  divisions  in  Colo- 
rado the  loaning  privilege  has  been  interpreted 
so  liberally  that  there  is  reason  to  believe  that 
actual  sales  of  water  have  been  made  by  the  hold- 
ers of  the  old  appropriations.  This  practically 
nullifies  the  doctrine  of  priority.  Under  it,  what 
A  does  not  need  belongs  to  B,  and  if  B  does  not 
need  it,  it  belongs  to  C ;  but  under  these  laws  A 
can  let  D  have  his  appropriation  and  thus  take  it 
away  from  both  B  and  C.  The  knowledge  that 
such  loans  can  be  made  is  leading  to  an  extension 
of  #the  irrigated  territory  under  ditches  which 
178 


IRRIGATION    IN   COLORADO 

would  have  no  water  at  all  under  a  rigid  enforce- 
ment of  the  doctrine  of  priority,  so  that  crops  are 
not  only  being  "  saved,"  but  planted  and  matured 
on  borrowed  water.  It  has  greatly  augmented 
the  value  of  early  rights,  aggravated  the  injustice 
of  excess  decrees,  robbed  irrigators  who  were  justly 
entitled  to  water  under  the  doctrine  of  priority,  and 
shifted  the  location  of  the  lands  irrigated,  rather 
than  "  saved "  the  crops  of  the  irrigators.  It  is 
but  just  to  say  that  this  act  has  the  qualified  ap- 
proval of  the  State  irrigation  authorities,  and  that, 
in  the  majority  of  districts,  the  water  commission- 
ers report  that  it  has  worked  beneficially.  Never- 
theless, it  seems  to  be  a  dangerous  measure. 

An  irrigation  district  law  was  passed  in  1901. 
It  provides  for  the  creation  of  irrigation  districts 
with  power  to  construct  or  purchase  irrigation 
works,  to  issue  bonds  and  levy  taxes,  and  do  every- 
thing necessary  for  the  construction  and  operation 
of  irrigation  works.  It  is  hoped  that  this  law  will 
tend  to  the  consolidation  of  rival  ditches  and  to  a 
larger  extension  of  the  principle  of  cooperation ; 
but  it  has  not  been  in  force  long  enough  to  deter- 
mine whether  these  results  will  follow. 

Taken  as  a  whole,  the  Colorado  irrigation  system 
is  worthy  the  study  of  those  interested  in  irriga- 
tion in  every  other  arid  State.  The  administra- 
tive features  are  worthy  of  general  adoption ;  the 
method  of  adjudicating  rights  needs  amendment. 


179 


CHAPTER   IX 
IRRIGATION  IN  CALIFORNIA 

FROM  the  time  the  mission  fathers  turned  the 
streams  of  California  on  the  thirsty  soil,  irrigation 
has  shown  a  mingling  of  altruism  and  selfishness. 
In  no  part  of  the  world  has  the  practical  irrigator 
shown  greater  economy  and  skill,  and  nowhere  has 
the  profession  of  the  civil  engineer  won  greater 
triumphs  in  the  storage  and  diversion  of  streams, 
but  at  the  same  time  there  have  arisen  controver- 
sies over  water  rights,  which  have  been  as  expen- 
sive as  they  were  unnecessary.  Ability  and 
success  on  the  part  of  water  users  have  been 
hampered  and  endangered  by  legal  and  social 
abuses,  which  the  experience  of  all  irrigated  coun- 
tries has  shown  to  be  fatal  to  enduring  success. 

The  great  success  which  irrigation  has  attained 
in  the  face  of  these  drawbacks  has  been  due  to  the 
fact  that  nature  has  done  much  for  the  farmer  in 
California.  No  other  State  has  as  diversified  prod- 
ucts or  as  highly-priced  farming  land.  The  usual 
limitations  imposed  by  latitude  are  here  set  aside. 
The  leading  irrigated  districts  of  both  northern 
and  southern  California  have  the  unique  distinc- 
tion of  being  able  to  grow  all  the  products  of  New 
180 


IRRIGATION   IN   CALIFORNIA 

England  and  Florida  on  the  same  acre  of  land. 
Date  palms  grow  in  the  latitude  of  southern  Illi- 
nois, and  oak  and  orange  trees  shade  the  same 
blue  grass  lawn.  The  summers  are  not  too  hot 
for  the  turf  nor  the  winters  too  cold  for  the  trees. 
In  this  favored  country  there  is  a  wet  and  a  dry 
season.  Winter  is  the  season  of  rain  and  is  the 
growing  season  for  many  of  the  products  of  the 
temperate  zone.  The  rainless  season  comes  dur- 
ing the  period  of  harvest  and  fruitage.  Grain 
ready  for  the  reaper  may  stand  uninjured  for 
months.  The  curing  of  forage  is  attended  with 
none  of  the  uncertainty  or  risk  of  loss  which  at- 
tends this  work  in  humid  districts.  It  is  hard  to 
estimate  how  much  a  cloudless  sky  has  done 
toward  developing  the  fruit-growing  industries  of 
California.  Especially  is  this  true  of  the  dried 
fruits :  peaches,  prunes,  apricots,  nectarines,  rai- 
sins, and  figs  could  nowhere  else  in  this  country 
be  dried  in  the  sun  with  the  safety  and  cheapness 
that  attends  this  work  in  California. 

The  climate  of  California  has  made  it  one  of 
nature's  great  sanitariums.  The  clear  skies,  the 
bright  sunshine,  and  the  even  temperature  of  both 
winter  and  summer,  are  southern  California's 
greatest  asset.  The  riches  of  the  mines  and  the 
fertility  of  the  soil  have  their  counterpart  in  the 
wealth  of  scenic  beauty  which  the  State  possesses. 
To  the  charms  of  the  ocean  are  added  the  attrac- 
tions of  the  snows  and  wild  and  rugged  canyons  of 
the  Sierras.  In  all  parts  of  the  State,  these  are 
181 


IRRIGATION    INSTITUTIONS 

so  near  at  hand  that  they  can  be  enjoyed  by  those 
of  the  most  slender  means. 

To  the  marvellous  possibilities  of  the  climate 
there  is  added  a  soil  of  great  fertility,  with  a  sur- 
face smooth  and  easy  of  tillage.  This  is  true  of 
California  in  general,  but  it  needs  to  be  qualified 
by  the  statement  that  in  no  State  in  the  Union  is 
there  a  greater  diversity  in  the  character  of  the 
soil,  or  greater  need  of  understanding  its  manage- 
ment. In  much  of  the  cultivated  portion  of  the 
State  irrigation  is  not  a  matter  of  necessity  but  of 
choice.  A  farmer  may  irrigate  his  garden  and 
leave  his  wheat  field  to  the  rain.  This  is  especially 
true  of  northern  California.  The  windmills  around 
Stockton  mark  the  limits  of  irrigation.  Beyond 
this  the  land  is  still  cultivated,  but  it  is  watered 
from  the  clouds.  In  the  Santa  Clara,  San  Joaquin, 
and  Sacramento  valleys,  one  passes  a  constant 
succession  of  vineyards  and  orchards,  some  of 
which  are  irrigated  and  some  are  not,  yet  all 
appear  flourishing.  Nevertheless,  no  State  has 
gained  more  than  California  from  the  artificial 
application  of  water,  or  has  more  at  stake  in 
the  extension  of  its  use.  It  is  only  through  its 
magic  that  all  of  the  possibilities  with  which  the 
State  is  so  generously  endowed  can  be  brought 
into  full  fruition.  Through  irrigation,  midsummer 
can  be  made  almost  as  lovely  as  spring.  It  re- 
moves or  lessens  the  dust  and  discomfort  of  the 
rainless  season  and  makes  it  possible  to  create 
rural  homes,  which,  on  the  whole,  represent  an 
182 


IRRIGATION    IN    CALIFORNIA 

average  of  human  comfort  hardly  to  be  equalled 
elsewhere  in  this  country.  It  completes  the  mar- 
vellous combination  which  makes  winter  a  season 
of  seed-time  instead  of  stagnation,  which  gives  to 
the  farmers  many  of  the  products  of  the  tropics 
with  the  climate  of  the  temperate  zone,  which 
withholds  moisture  when  it  is  not  needed  and  thus 
relieves  the  husbandman  of  the  most  serious  vicis- 
situdes of  humid  districts.  This  is  an  aggregation 
of  advantages  which  those  who  live  elsewhere  find 
it  hard  to  believe  exists,  and  which  at  home  is  not 
everywhere  fully  appreciated. 

The  figures  of  the  twelfth  census  furnish  an 
appropriate  starting-point  for  considering  the  irri- 
gation laws  and  customs  of  California.  According 
to  these,  there  are  now  25,675  users  of  water  in 
irrigation,  of  which  over  18,000  are  supplied  from 
streams  and  nearly  7000  from  wells.  Altogether, 
1,446,114  acres  of  land  are  irrigated,  of  which 
152,506  acres  are  supplied  from  wells.  The  total 
number  of  ditches  is  put  down  as  9913  and  their 
total  cost  is  given  as  nearly  $13,000,000.  It  is 
believed  that  the  actual  outlay  is  nearer  $20,000,000 
than  $13,000,000,  but  the  number  of  dollars  in- 
vested is  of  less  consequence  than  a  clear  under- 
standing of  the  nature  of  the  right  of  each  user 
of  water,  how  it  was  acquired,  and  how  it  is 
protected. 

Taken  by  themselves,  the  figures  given  convey 
no  real  impression  of  what  irrigation  is  doing  for 
California.  In  order  to  realize  this,  one  must  go 
183 


IRRIGATION   INSTITUTIONS 

to  the  southern  part  of  the  State,  where  lands 
which  were  once  not  worth  $10  an  acre  have  by 
irrigation  been  made  worth  $1800  an  acre,  where 
water  which  once  ran  unused  to  the  sea  now  sells 
for  $1250  for  a  single  inch,  where  the  water  rentals 
on  an  acre  of  land  have  at  times  exceeded  the 
purchase  price  of  an  acre  of  first-class  farming 
land  in  Iowa.  The  citrus  industry,  which  affects 
not  simply  southern  California  but  the  markets 
of  every  important  city  in  the  United  States,  is  the 
creation  of  irrigation,  but  great  as  it  is,  it  is  not 
the  chief  benefit  which  irrigation  has  brought  to 
this  part  of  the  State.  A  large  gain  has  come 
from  the  beautiful  landscape  which  these  oases  of 
fruit  and  foliage  present  and  which  have  done 
as  much  to  create  the  cities  of  Los  Angeles,  River- 
side, Redlands,  and  Pasadena  as  their  delightful 
climate.  The  crowds  of  health  and  pleasure 
seekers  which  each  year  visit  this  section  would 
find  little  to  attract  them  if  every  valley  depended 
solely  on  rainfall  for  its  water-supply  and  in  sum- 
mer was  still  brown,  dusty,  and  arid. 

Irrigation  in  northern  California  is  of  more  im- 
portance for  its  possibilities  than  its  achievements. 
For  nearly  a  half  century  the  greater  part  of  the 
land  of  this  region  has  been  devoted  to  the  unremit- 
ting production  of  cereal  crops.  Each  year  the 
grain  has  been  shipped  away  and  the  straw  burned. 
Little  or  nothing  has  been  done  to  restore  the 
fertility  of  the  soil.  Although  this  surprising 
drain  has  gone  on  for  fifty  years,  it  cannot  con- 

184 


IRRIGATION   IN   CALIFORNIA 

tinue  forever.  There  must  be  a  change,  rotation 
of  crops  must  be  introduced  both  to  maintain 
the  fertility  of  the  soil  and  to  render  agriculture 
less  hazardous  and  more  profitable.  Such  rotation 
is  not  possible  by  rainfall  alone.  There  is  neither 
enough  water  nor  is  it  rightly  distributed.  While 
the  dry  season  is  one  of  the  State's  greatest  advan- 
tages when  combined  with  irrigation,  it  is  a  great 
obstacle  when  agriculture  is  attempted  without 
irrigation's  aid.  It  is  possible  to  make  California 
one  of  the  richest  agricultural  States  in  America, 
but  to  do  this  requires  that  every  river  shall  be 
diverted,  that  the  floods  shall  be  stored,  and  that 
every  drop  of  the  available  supply  shall  be  used. 
It  is  unfortunate  that  the  laws,  as  they  exist  to-day, 
do  not  furnish  adequate  protection  or  security  for 
any  such  development. 

In  much  of  California,  irrigation,  while  of  great 
value,  is  not  a  necessity.  Neither  the  bonanza 
wheat  farm  nor  the  cattle  ranch  —  the  two  agri- 
cultural industries  which  first  became  prominent 
in  California  —  require  it.  Both  of  these  had  a 
fascination  which  made  their  owners  object  to  a 
change.  The  pictures  of  the  early  cattle  ranches 
by  Bret  Harte,  and  the  story  of  the  wheat  farm  by 
Frank  Norris,  make  it  plain  why  the  coming  of  the 
irrigator  was  looked  upon  with  disfavor.  The  owner 
of  the  ranch  herd  was  more  than  a  money-maker. 
He  often  ruled  a  territory  larger  than  some  States. 
The  bonanza  wheat  farm  suited  the  spirit  of  men 
who  loved  large  undertakings,  Wheat-growing 


IRRIGATION   INSTITUTIONS 

was  spectacular  as  well  as  profitable.  The  irrigator 
working  in  the  mud,  under  the  sun  of  the  California 
summer,  was  not  an  attractive  object,  and  the  cattle- 
men along  King's  River  threatened  to  lynch  the  first 
builder  of  a  ditch  on  that  stream. 

For  many  years  irrigation  in  California  was  con- 
sidered a  private  matter.  If  one  man  chose  to 
irrigate  his  land,  that  was  no  concern  of  his  neigh- 
bor who  farmed  without  the  aid  of  streams.  The 
large  estates  of  California  strengthened  this  ten- 
dency. Some  of  the  canals  built  by  their  owners 
to  water  their  own  property  would  in  other  States 
serve  to  water  one  hundred  farms.  The  Crocker- 
Huffman  Canal  and  the  Calloway  Canal  each  cost 
over  $1,000,000,  yet  they  irrigated  only  a  part  of 
the  land  of  their  builders.  The  community  looked 
on  these  works  as  private  ventures,  differing  only 
slightly  in  character  from  the  barn,  the  winery,  or 
roads  which  formed  a  part  of  these  estates.  Much 
of  the  land  now  divided  up  into  small  tracts  was 
originally  owned  by  a  single  individual,  who  built 
canals  to  fertilize  it  and  then  sold  the  land  and  water 
together.  In  this  way  many  of  the  districts  now 
farmed  under  cooperative  irrigation  works  were 
originally  a  single  private  estate. 

Some  causes  which  led  the  people  of  California 
to  look  upon  the  building  of  ditches  as  a  private 
matter  caused  them  to  regard  the  struggle  over 
the  ownership  of  streams  in  the  same  light.  Many 
did  not  wish  to  irrigate,  and  they  looked  with  indif- 
ference on  the  appropriation  of  streams  by  those 
186 


IRRIGATION   IN   CALIFORNIA 

who  did.  As  ditches  multiplied  and  appropriators 
failed  to  agree  upon  a  division  of  the  water-supply 
lawsuits  arose,  but  these  controversies  did  not  inter- 
est the  public.  Those  who  owned  irrigation  works 
were  apparently  willing  to  fight  for  the  control 
of  the  water  which  filled  them,  and  those  who  were 
not  irrigating  took  little  interest  in  the  troubles  of 
those  who  were. 

The  true  conception  —  that  water  is  public  prop- 
erty ;  that  whoever  diverts  it  is  a  public  servant  ; 
that  whoever  uses  it  in  irrigation  is  a  public  bene- 
factor ;  and  that  rights  to  control  streams  can  only 
be  exercised  wisely  and  safely  under  public  super- 
vision —  has  been  of  slow  growth  in  California. 

The  dedication  of  streams  to  the  use  of  the  people 
of  the  State,  as  in  Colorado,  has  no  place  in  the  laws 
of  California.  Nowhere  else  in  the  arid  region  has 
private  enterprise  gone  so  far  nor  public  neglect  been 
so  pronounced.  Not  only  has  the  State  failed  to 
assert  control  over  streams,  but  many  able  attorneys 
say  that  no  such  control  can  be  exercised.  This 
makes  water  the  subject  of  an  unending  warfare, 
which  does  not  change  in  character  whether  it  is 
waged  with  shotguns  and  shovels  on  the  banks 
of  ditches  or  by  means  of  injunctions  in  the 
courts. 

The  few  water  laws  of  California  are  confined  to 
general  declarations,  which  have  little  practical  in- 
fluence because  no  means  have  been  provided  for 
carrying  them  into  practical  operation.  The  stat- 
utes say  "  that  the  right  to  running  water  may  be 

187 


IRRIGATION    INSTITUTIONS 

acquired  by  appropriation,  which  must  be  for  some 
useful  or  beneficial  purpose,"  and  that  when  this 
right  ceases  to  be  used  it  is  lost.  But  there  is  no 
method  by  which  interested  parties  can  learn  how 
much  water  has  been  used  nor  what  rights  have 
been  abandoned. 

These  rights  already  affect  the  prosperity  of 
many  thousands  of  people  and  are  destined  in  time 
to  have  a  vastly  greater  importance,  but  a  simple 
declaration  that  they  exist  will  not  divide  streams 
among  users  any  more  than  a  knowledge  of  the 
ten  commandments  will  cause  men  to  follow  their 
teachings.  Protection  of  irrigators  requires  the 
division  of  the  state  into  drainage  districts  and  the 
appointment  of  officers  to  divide  water  between 
appropriators,  in  order  that  peace  and  stability 
may  prevail. 

The  laws  of  California  require  parties  intending 
to  appropriate  water  to  post  a  notice  stating  what 
they  claim,  the  purpose  for  which  it  is  claimed,  the 
means  to  be  taken  to  divert  it,  and  the  size  of  the 
ditch,  flume,  pipe,  or  aqueduct  which  is  to  be  con- 
structed. It  also  requires  that  this  posted  notice 
shall  be  recorded,  but  does  not  require  that  all  these 
records  shall  be  in  one  place.  Instead,  they  are  re- 
corded in  whatever  county  the  head-gate  is  located. 
The  recorder  who  receives  this  notice  is  elected 
to  perform  other  duties,  and  has  no  authority  to 
reject  an  improper  claim  and  is  not  required  to  see 
that  any  of  them  conform  to  the  actual  facts.  In 
some  counties  he  has  a  book  to  which  any  appro- 

188 


IRRIGATION   IN   CALIFORNIA 

priator  of  water  has  access,  and  in  which  he 
writes  whatever  he  pleases. 

As  no  examination  is  ever  made  to  determine 
whether  or  not  the  ditches  described  in  this  record 
are  actually  built,  they  neither  protect  actual  users 
of  water  nor  give  warning  to  intending  investors  in 
irrigation  works.  So  far  as  practical  results  are 
concerned,  all  who  are  interested  would  be  fully 
as  well  off  if  not  a  single  claim  had  ever  been 
recorded. 

These  records  are  rendered  still  more  useless  by 
the  fact  that  rights  to  water  can  be  acquired  by 
prescription  without  any  record  being  made.  Five 
years'  use  of  water  without  notice  to  other  users 
gives  the  same  right  as  if  this  notice  had  been 
recorded. 

The  character  of  these  records  in  California  are 
not  unlike  those  elsewhere.  There  is  the  same 
uncertainty  of  statement;  the  same  tendency  to 
claim  extravagant  amounts  of  water;'  the  same 
grotesque  misuse  of  the  units  of  measurement.1 
Where  it  is  too  much  trouble  to  make  an  esti- 

1  The  luminous  fact  which  appears  strikingly  on  the  face  of  these 
statistics  is  that  nobody  knew  how  much  water  was  available  for 
appropriation,  how  much  they  needed,  or,  in  case  of  those  who 
followed  up  their  claims  with  actual  diversion  and  use,  how  much 
they  received.  The  evils  to  result  from  such  methods  might  be 
expected  to  make  themselves  felt  when  the  country  is  well  settled, 
and  it  becomes  necessary  to  enforce  the  utmost  economy  in  the  use 
of  the  water-supply.  —  WILLIAM  E.  SMYTHE.  Irrigation  Problems 
of  Honey  Lake  Basin,  Bulletin  100,  Office  of  Experiment  Stations, 
U.  S.  Dept.  of  Agriculture. 

189 


IRRIGATION    INSTITUTIONS 

mate  of  the  water  to  be  used,  the  whole  stream  is 
claimed.  In  some  cases  this  is  made  more  com- 
prehensive by  claiming  all  the  water  below  ground 
as  well  as  above.  In  Honey  Lake  Valley  the 
claims  to  water  amount  in  the  aggregate  to  more 
than  enough  to  irrigate  twice  the  land  that  is  ever 
likely  to  be  watered  in  the  United  States.  The 
average  flow  of  King's  River  varies  from  5000  to 
10,000  cubic  feet  per  second  in  flood  season,  and 
between  500  and  1000  cubic  feet  per  second  dur- 
ing the  low  period.  The  claims  to  the  water  of 
this  stream  amount  to  750,000  cubic  feet  per  second, 
exclusive  of  a  large  number  of  claims  to  the  entire 
supply.  The  San  Joaquin  River  has  a  discharge 
of  approximately  6000  cubic  feet  per  second.  The 
notices  recorded  claim  914,286  cubic  feet  per 
second. 

Under  the  code  of  California,  the  right  of  appro- 
priation is  limited  to  running  water  flowing  in  a 
river,  stream,  or  down  a  canyon  or  ravine.  Perco- 
lating water  is  not  subject  to  appropriation,  it  being 
held  to  belong  to  the  soil.  The  distinction  between 
running  water  and  percolating  water  is  of  great 
practical  importance.  In  southern  California  and 
in  certain  sections  of  northern  California,  there  are 
hundreds  of  wells  from  which  water  is  pumped  and 
large  investments  have  been  made  in  tunnels  and 
bedrock  dams  to  utilize  underground  supplies.  If 
the  water  secured  is  running  water,  it  is  subject  to 
appropriation,  but  if  it  is  not  running  water  within 
the  meaning  of  the  code,  it  belongs  to  the  land- 

190 


IRRIGATION    IN    CALIFORNIA 

owner  and  no  right  to  its  use  can  be  acquired  by 
others.1  In  every  case  there  is  an  element  of  un- 
certainty as  to  whether  the  water  pumped  is  drawn 
from  what  is  stored  in  the  soil  or  from  subterranean 
streams  which  are  intercepted,  and  there  is  no  way 
of  legally  determining  this  in  California  except 
through  litigation.  The  occasions  for  such  litiga- 
tion are  being  multiplied  by  filling  up  the  subsoil 
with  water  from  irrigation  ditches. 

Before  irrigation  began  in  the  San  Joaquin  Valley 
the  water-bearing  strata  was  seventy  feet  below  the 
surface.  In  the  irrigation  season  it  is  now  less 
than  seven  feet  from  the  surface  in  many  localities. 
Pumping,  which  would  have  been  unprofitable  in 
the  first  place,  is  now  being  largely  adopted  because 
of  the  diminished  lift.  This  creates  a  new  question. 
Have  the  canals  which  fill  this  subsoil  any  claim  on 
the  water  it  carries  ? 

Another  perplexing  problem  connected  with  the 
use  of  underground  water-supplies  is  the  fact  that 
many  streams  which  flow  on  the  surface  in  the 
mountain  canyons  sink  into  the  gravel  of  their 
debris  fans  when  they  flow  out  into  the  valleys 
requiring  irrigation.  Tapping  these  gravel  beds 
has  been  a  favorite  and  successful  method  of 


1  We  therefore  hold  it  to  be  the  law,  and  we  think  it  to  be  a 
moderate  and  just  exposition  thereof,  that  one  may,  by  appropriate 
works,  develop  and  secure  to  useful  purposes  the  subsurface  flow 
of  our  streams,  and  become,  with  due  regard  to  the  rights  of  others 
in  the  stream,  a  legal  appropriator  of  waters  by  so  doing.  (Vineland 
Irr.  District  v.  Azusa  Irr.  Co.,  126  Cal.,  486.) 

191 


IRRIGATION    INSTITUTIONS 

developing  water  in  California  during  the  past 
few  years,  but  in  some  instances  this  underground 
water  again  comes  to  the  surface  farther  down  the 
stream,  and  the  question  has  arisen  as  to  whether 
the  use  of  underground  supplies  above  does  not 
interfere  with  the  rights  of  appropriators  of  the 
surface  waters  below. 

There  is  another  interesting  question  connected 
with  the  use  of  underground  water.  There  are 
over  1 500  pumping  plants  in  the  Santa  Clara  Valley. 
Their  operation  lowers  the  water-plane  of  that  val- 
ley during  the  irrigation  season.  Before  this  lower- 
ing took  place  the  roots  of  trees  in  many  orchards 
reached  the  underground  water-supply  and  did  not 
require  irrigation.  Now  they  do  not  reach  it,  and 
irrigation  has  become  a  necessity.  Thus  the  sur- 
face irrigation  of  one  orchard  may  lower  the  water- 
plane  in  an  adjoining  field.  It  is  thus  possible  for 
one  man  to  rob  his  neighbor  of  his  water-supply, 
and  this  raises  the  question  whether  there  should 
not  be  priority  of  right  to  underground  as  well  as 
surface  supplies,  regardless  of  whether  they  flow 
in  a  well-defined  channel  or  are  percolating  through 
the  soil. 

Riparian  Rights 

In  1850,  the  legislature  of  California  passed  a 
law  which  makes  the  common  law  of  England 
apply  in  all  cases  not  in  conflict  with  the  law  and 
constitution  of  California,  or  the  Constitution  of  the 
United  States.  Under  the  statute,  it  has  been  held 

192 


IRRIGATION  IN  CALIFORNIA 

that  the  common-law  doctrine  of  riparian  rights 
applies  to  California  streams.  In  1851  a  law  was 
passed  providing  for  the  appropriation  of  water, 
and  this  was  generally  regarded  as  abrogating 
riparian  rights,  repealing  by  implication  the  ear- 
lier statute,  at  least  so  far  as  irrigation  was  con- 
cerned, and  it  was  not  until  nearly  twenty  years 
later,  and  after  millions  of  dollars  had  been  in- 
vested in  irrigation  works,  that  this  question  was 
raised.  In  the  historic  decision  of  Lux  v.  Haggin, 
it  was  held,  however,  that  riparian  proprietors  have 
vested  rights  in  streams,  but  this  decision,  while 
recognizing  the  supremacy  of  the  common-law 
doctrine,  modified  it  in  such  a  way  as  to  legalize 
the  irrigation  of  riparian  lands.  Because  of  this 
modification,  the  economic  import  of  the  decision 
has  not  been  what  was  feared  at  the  time,1  and 
its  influence  has  been  still  further  changed  by 

1  Every  practical  man  must  know  that,  with  the  dry  atmosphere 
and  porous  soils  of  those  sections  requiring  irrigation,  but  little,  if 
any,  of  the  water  diverted  and  used  in  irrigation  is,  or  can  be 
returned  to  the  stream  from  which  it  is  taken.  To  establish,  there- 
fore, as  the  law  of  this  State,  that  the  water  of  a  watercourse  must 
flow  on  in  its  natural  channel,  undiminished  in  quantity,  would  in 
effect  be  to  convert  the  fertile  fields,  gardens,  orchards,  and  vine- 
yards in  many  and  great  sections  of  the  State  into  waste  and  desert 
places.  Such  a  rule  is  inapplicable  to  the  conditions  of  things  exist- 
ing here.  The  common  law  is  supposed,  and  has  been  said  to  be, 
the  perfection  of  human  reason,  but  it  would  be  the  very  reverse 
of  this  to  hold  that  the  waters  of  the  streams  of  California  must 
continue  to  flow  in  their  natural  channels  until  they  sink  into  the 
sands  or  waste  themselves  in  the  sea,  while  orchards,  vineyards,  and 
growing  crops  of  immense,  if  not  incalculable  value,  perish  from 
thirst. — Extract  from  dissenting  opinion  of  Justice  Erskine  M.  Ross, 
o  i 


IRRIGATION   INSTITUTIONS 

subsequent  decisions,  until  to-day  the  rights  of  a 
riparian  owner  are  more  like  those  of  a  preferred 
appropriator  of  water  than  those  of  a  riparian  pro- 
prietor under  the  common-law  doctrine  as  it  is 
generally  understood  elsewhere. 

Owners  of  riparian  land  have  not  only  diverted 
and  used  rivers  in  irrigation,  but  have  rented  and 
sold  the  water  claimed  under  the  riparian  doctrine  to 
those  who  irrigate  non-riparian  lands,  and  the  right 
to  do  this  has  been  sustained  in  repeated  judicial 
decisions.1  This  has  led  these  proprietors  to  assert 
a  right  to  the  entire  supply,  not  only  for  the  irri- 
gation of  all  lands  they  own,  but  to  what  they  can 
dispose  of  to  non-riparian  neighbors. 

In  speaking  of  this  modification  of  the  common 
law  doctrine,  Hon.  John  D.  Works,  a  distinguished 
law  writer  of  California,  has  said  :  — 

"  But  this,  again,  is  wholly  inconsistent  with  the  common- 
law  right,  which  is  a  part  of  the  land  to  which  it  is  annexed. 
Of  course  he  could  grant  or  convey  his  right  with  the  land  of 
which  it  is  a  part,  but  not  otherwise,  because  when  severed 
from  the  land  it  is  no  longer  a  riparian  right,  but  that  right  is 
wholly  destroyed.  Therefore,  it  is  certainly  an  error  to  say 
that  a  riparian  right  may  be  conveyed  separate  from  the  land. 
The  party  to  whom  the  conveyance  is  made  may  obtain  the 
right  to  the  use  of  the  water,  but  it  is  no  longer  a  riparian 
right."  2 

The  doctrine  of  appropriation  and  the  common- 
law  doctrine  of  riparian  rights  are  directly  antago- 

1  Gould  v.  Stafford,  91  Cal.  146.     Alta  Land  Co.  v.  Hancock,  85 
Gal.  219.     Sprague  v.  Heard,  90  Cal.  221. 

2  Works  on  Irrigation,  pp.  23-25. 

194 


IRRIGATION   IN   CALIFORNIA 

nistic,  yet  both  are  a  part  of  the  irrigation  system 
of  California.  Under  the  former,  appropriators 
have  claimed  the  entire  flow  of  streams  and  pro- 
vided for  the  distribution  and  use  of  the  water. 
On  the  same  streams  riparian  proprietors  claim  a 
preferred  right  to  the  entire  flow,  regardless  of 
whether  they  use  it  or  not. 

The  absence  of  any  definite  limitation  on  ripa- 
rian rights  creates  a  serious  menace  to  large  in- 
vestments in  irrigation  works.  The  Sweetwater 
and  Hemet  reservoirs  are  both  large  and  costly 
storage  works.  Both  have  been  compelled  to 
defend  vexatious  and  expensive  lawsuits  brought 
by  owners  of  riparian  land  to  compel  their  destruc- 
tion. In  each  case  the  failure  of  these  suits  was 
not  due  to  a  reversal  of  the  riparian  doctrine,  but 
to  technical  blunders  made  by  the  plaintiffs  in 
the  litigation.  If  the  riparian  doctrine  is  to  be 
maintained,  there  should  be  an  early  definition  of 
what  are  riparian  lands,  in  order  that  other  users 
of  water  may  know  the  extent  of  the  preferred 
claims  to  the  water  of  California  streams.  Irriga- 
tors  need  to  know  whether  or  not  the  owner  of 
640  acres  of  land,  which  has  a  few  hundred  feet 
frontage  on  a  creek,  can  irrigate  the  entire  section 
as  a  riparian  proprietor,  while  the  owner  of  40 
acres  of  land,  which  fails  to  reach  the  stream's 
bank  by  a  few  feet,  is  denied  the  right  to  water. 

Many  of  these  rights  are  being  exercised  in  an 
arbitrary  fashion,  and  the  property  in  water  is  of  a 
purely  speculative  character.  Wherever  a  riparian 


IRRIGATION    INSTITUTIONS 

proprietor  objects  to  the  use  of  water  above,  only 
litigation  can  determine  whether  or  not  the  objec- 
tion is  justified.  If  he  is  so  disposed,  a  riparian 
owner  can  be  a  menace  to  actual  users,  even  if  he 
does  not  levy  tribute  upon  them. 

In  the  decision  which  recognized  riparian  rights, 
it  was  held  that  the  evils  of  the  riparian  doctrine 
were  less  to  be  feared  than  those  which  might 
come  from  the  acquirement  of  speculative  rights 
under  the  doctrine  of  appropriation.1  There  is  no 
question  but  what  there  was  some  basis  for  this 
fear,  but  the  establishment  of  riparian  rights  does 
not  provide  a  remedy.  It  has  in  it  the  germ  of 
natural  justice  so  long  as  the  rights  are  attached 
to  the  land  and  do  not  become  the  property  of  the 
owner  of  the  land.  The  danger  of  monopoly  lies, 
not  in  the  doctrine  of  appropriation,  or  in  the  doc- 
trine of  riparian  rights,  but  in  making  water  rights 
personal  property,  which  can  be  held  and  trans- 

1  In  our  opinion  it  does  not  require  a  prophetic  vision  to  antici- 
pate that  the  adoption  of  the  rule,  so-called,  of  "  appropriation  " 
would  result,  in  time,  in  a  monopoly  of  all  the  waters  of  the  State 
by  comparatively  few  individuals,  or  combinations  of  individuals 
controlling  aggregated  capital,  who  could  either  apply  the  water  to 
purposes  useful  to  themselves,  or  sell  it  to  those  from  whom  they 
have  taken  it  away,  as  well  as  to  others.  Whether  the  fact  that  the 
power  of  fixing  rates  would  be  in  the  supervisors,  etc.,  would  be  a 
sufficient  guarantee  against  overcharges  would  remain  to  be  tested 
by  experience.  Whatever  the  rule  laid  down,  a  monopoly  or  con- 
centration of  the  waters  in  a  few  hands  may  occur  in  the  future. 
But  surely  it  is  not  requiring  too  much  to  demand  that  the  owners 
of  lands  shall  be  compensated  for  the  natural  advantages  of  which 
they  are  to  be  deprived.  (69  Cal.,  310.) 

196 


IRRIGATION   IN   CALIFORNIA 

ferred   without  regard  to  the   ownership    of   the 
land. 

The  greatest  boon  which  could  be  conferred  on 
farmers  and  ditch-owners  of  California  would  be 
relief  from  the  anxiety  and  expense  of  litigation 
over  water  rights.  Two  examples  will  show  the 
extent  of  this  menace  to  future  development. 
The  litigation  over  the  water  rights  to  Los  An- 
geles River  has  been  going  on  for  more  than 
thirty  years.  The  first  suit  was  between  the  city 
and  two  riparian  proprietors  claiming  two  hundred 
miner's  inches  of  water.  It  was  decided  in  favor 
of  the  two  landowners  and  no  appeal  was  taken. 
After  waiting  a  number  of  years,  the  city  brought 
a  second  suit,  which  was  also  decided  in  favor 
of  the  two  landowners.  This  time  an  appeal  was 
taken  to  the  supreme  court  and  a  ruling  made  that 
the  contention  of  ownership  in  the  stream  made  by 
the  city  had  no  support  in  evidence.  In  April,  1881, 
the  city  became  engaged  in  a  contest  with  other 
riparian  proprietors.  This  was  appealed  to  the 
supreme  court,  which  decided  that  the  claims  of 
the  city  to  all  the  water  of  the  Los  Angeles  River 
"  had  been  recognized  by  all  the  persons  interested 
from  the  head  of  the  stream  and  along  its  banks, 
including  the  plaintiffs."  This  was  a  reversal  of 
the  earlier  decisions  of  both  the  lower  and  higher 
courts. 

Since  1881,  there  have  been  three  lawsuits  con- 
testing the  city's  pueblo  right,  dating  back  to  1781. 
The  last  decision  in  these  cases  was  rendered  in 
197 


IRRIGATION   INSTITUTIONS 

1 899.  Whether  this  decision  will  stand  remains  for 
the  future  to  determine,  as  a  suit  is  now  pending 
over  what  the  river  includes.  The  trial  which 
recently  closed  occupied  the  court  for  seventy-two 
days.  The  testimony  taken  filled  nine  thousand 
type-written  pages. 

Another  illustration  of  the  possibilities  of  water- 
right  litigation  in  California  is  furnished  by  Cache 
Creek  in  Yolo  County.  So  far  as  natural  advan- 
tages go,  there  are  few  places  in  this  country 
which  equal  the  valley  of  this  stream.  The  fol- 
lowing description 1  does  not  overstate  its  possibili- 
ties :  — 

"We  have  here  a  country  of  marvellous  possibilities,  a  soil 
rich  in  all  the  elements  of  plant  growth,  with  surface  smooth 
and  easy  of  tillage,  a  climate  whose  summer  heat  and  winter 
cold  are  tempered  by  the  breezes  of  the  Pacific,  so  equable 
that  here  all  the  choicest  products  of  the  temperate  zone  and 
of  the  subtropics  are  grown  alike  in  perfection.  Here  flourish 
side  by  side  the  apple,  the  peach,  the  pear,  the  plum,  the  apri- 
cot, and  grape,  along  with  the  orange,  the  lemon,  the  lime,  and 
the  fig.  Here  the  oak  and  the  pine,  there  the  palm  and  the 
pepper  tree.  The  roses  bloom  winter  and  summer.  The 
orange  carries  its  fruit  through  the  winter,  the  oleander  is  a 
tree  and  the  heliotrope  a  hardy  shrub." 

To  make  use  of  these  resources  irrigation  is 
necessary.  The  natural  rainfall  of  the  country 
will  not  answer.  The  land  that  is  irrigated  is 
worth  from  two  to  four  times  as  much  as  the  un- 
irrigated  land  which  adjoins  it.  Notwithstanding 

1  Professor  J.  M.  Wilson.     Irrigation  from  Cache  Creek,  Bulletin 
loo,  Office  of  Experiment  Stations,  U.  S.  Department  of  Agriculture. 
198 


IRRIGATION   IN   CALIFORNIA 

this,  only  a  small  fraction  of  the  water  is  being 
used.  This  is  not  due  to  physical  obstacles. 
Cache  Creek  is  a  large  stream  in  the  early  part 
of  the  year,  and  Clear  Lake,  at  its  head,  could  be 
made  into  a  valuable  storage  basin.  Nor  is  the 
failure  to  use  this  water  due  to  lack  of  appre- 
ciation. The  dwellers  in  this  valley  have  made 
repeated  attempts  to  build  ditches  and  turn  the 
water  on  their  farms.  The  first  ditch  was  built  in 
1856,  only  nine  years  after  the  building  of  the  first 
ditch  in  Utah.  It  is  not  known  how  much  it  carried, 
but  probably  not  to  exceed  fifty  cubic  feet  of  water 
per  second,  while  the  stream  carries  at  times  over 
one  thousand  cubic  feet  per  second.  Four  years 
after  the  ditch  was  built  its  owner  asserted  a  right 
to  all  the  waters  of  the  stream,  basing  the  claim 
on  the  ownership  of  a  Mexican  land  grant  through 
which  the  creek  flows. 

In  1860  a  number  of  farmers  of  the  town  of 
Yolo  spent  $75,000  building  a  second  ditch.  It 
was  below  the  one  first  built,  and  could  take  only 
the  water  that  the  earlier  appropriator  left  in  the 
stream.  In  1864  the  upper  ditch  was  enlarged, 
and  the  increased  diversion  reduced  the  water- 
supply  of  the  lower  company,  which  sought  the 
protection  of  the  district  court.  The  suit  thus 
begun  in  1864  dragged  along  in  the  courts  for 
ten  years,  when  a  decision  was  rendered  giving 
the  owners  of  the  lower  ditch  enough  water  to 
supply  it.  In  the  supreme  court  this  decision 
was  reversed,  and  the  lower  ditch  went  out  of 

199 


IRRIGATION    INSTITUTIONS. 

business.  Having  no  right  to  water,  it  was  sim- 
ply an  obstruction,  and  has  been  largely  obliterated. 

In  1871  another  company  began  a  ditch  and 
completed  it  in  1874.  Two  years  later  it  became 
involved  in  litigation  with  the  owner  of  the  first 
ditch,  in  which  the  plaintiff  was  nonsuited.  Two 
years  later  another  suit  was  begun;  in  this  the 
plaintiff  was  again  defeated.  Two  years  after- 
ward a  third  suit  was  begun  in  which  the  original 
appropriator  obtained  a  decree  to  a  continuous 
flow  of  432  cubic  feet  of  water  per  second. 
What  guided  the  court  in  fixing  this  amount  of 
water  cannot  be  ascertained,  because  the  testi- 
mony was  never  transcribed.  It  was  not  based 
on  the  capacity  of  the  ditch,  because  it  will  not 
carry  one-fourth  this  volume.  It  was  not  based 
on  the  flow  of  the  stream,  because  measurements 
made  in  June  and  July  of  1900  showed  it  fluctuated 
between  88  and  189  cubic  feet  per  second.  This 
case  was  appealed  to  the  supreme  court,  where  the 
judgment  was  confirmed. 

Another  ditch  had  to  be  abandoned  with  a  loss 
to  its  owners  of  about  $i  50,000.  The  loss  to  the 
community  was  far  greater. 

In  1877  another  ditch  company,  unmindful  of 
the  experience  of  its  predecessors,  or  perhaps  hop- 
ing for  a  more  fortunate  outcome,  began  a  ditch. 
In  1882  the  claimant  of  the  first  right  brought  suit 
for  an  injunction  to  restrain  this  company  from 
interfering  with  his  control  of  the  stream.  The 
case  came  to  trial  in  1888  and  dragged  its  slow 

300 


IRRIGATION   IN   CALIFORNIA 

length  along,  while  volume  after  volume  of  testi- 
mony, exceptions,  and  objections  was  being  filed. 
Before  it  was  completed  the  presiding  judge  was 
taken  ill  and  a  court  commissioner  appointed  who 
added  two  more  volumes  to  the  testimony  previ- 
ously taken.  The  final  result  of  this  litigation  is 
well  stated  by  Professor  J.  M.  Wilson,  who  pre- 
pared the  report  from  which  these  facts  have  been 
taken :  — 

"  To  find  any  capable  jurist  who  would  undertake  the 
appalling  and  thankless  task  of  digesting  all  this  accumulation 
of  fact  and  theory,  exception  and  objection,  and  who  was 
acceptable  to  both  parties  to  the  controversy,  was  not  easy. 
Twelve  years  have  passed,  and  no  referee  on  whom  the  con- 
tending parties  have  been  able  to  agree  has  ever  been  willing 
or  has  found  time  to  take  up  the  matter  and  reach  a  decision. 
The  cherished  hope  of  the  men  who  built  these  works  of  an 
improved  husbandry,  which  should  restore  and  perpetuate  the 
fertility  of  their  fields,  failed.  The  vision  of  meadow  and 
pasture  and  orchard  and  vineyard  and  garden  and  pleasant 
homes  vanished.  In  its  place  continued  the  dull  round  of 
ploughing  and  sowing  and  reaping  wheat,  while  diminished 
production  keep  pace  with  soil  deterioration. 

"  Through  all  these  years  the  temporary  injunction  issued 
thirteen  years  ago  continues  in  force.  The  Capay  Ditch  has 
been  ploughed  in  and  the  Adams  Ditch  is  a  wreck,  irrigating 
about  twenty  acres  and  carrying  a  little  water  for  stock. 

"  If  the  history  of  this  4  chosen  valley 1  was  different  from 
others  we  might  look  for  the  cause  of  all  this  dismal  failure  in 
the  character  of  the  people  who  have  been  engaged  in  these 
enterprises,  but  the  managers  or  promoters  of  these  failing 
ditch  enterprises  were  not  weaklings.  Their  quality  is 
approved  by  their  success  in  other  lines  before  and  since. 
Their  fault  was  a  too  great  faith  in  a  system  which  was  only 
lack  of  system,  whose  pretended  regulation  gave  only  fancied 

2OI 


IRRIGATION   INSTITUTIONS 

security  at  first,  to  later  add  to  their  embarrassment.  Every- 
where, all  over  California,  wherever  there  has  been  enter- 
prise enough  to  attempt  to  use  the  water,  the  story  is  the 
same.  The  energy  and  capital  of  water  users  and  appropri- 
ators  are  consumed  in  litigation.  The  cause  is  not  in  the 
people  who  seek  to  utilize  the  water,  but  in  the  law  regulating 
the  appropriation  and  use  of  water." 

In  order  to  avoid  experiences  of  this  character 
and  to  live  in  peace  with  one  another,  appropri- 
ators  of  water  have,  in  many  instances,  entered 
into  private  agreements  which  mutually  recognize' 
each  others'  rights.  In  all  such  agreements  there 
must  be  a  tacit  assumption  that  the  water  of  the 
stream  belongs  to  nobody  but  those  claiming  it, 
and  an  entire  disregard  of  the  rights  of  the  pub- 
lic whose  interests  are  so  vitally  affected  and  of 
those  appropriators  who  were  not  represented. 
While  these  understandings  are  far  to  be  preferred 
to  a  legal  warfare  such  as  has  been  described  and 
too  often  experienced,  there  is  always  a  danger 
that  in  such  divisions  more  water  may  be  conceded 
to  each  claimant  than  has  been  put  to  beneficial 
use,  and  a  foundation  laid  for  obstructing  future 
development  or  for  laying  unjust  tribute  on  those 
who  may  attempt  to  use  water  in  the  future. 

These  agreements  are  sometimes  given  added 
legal  sanction  by  friendly  lawsuits  in  which  de- 
crees, confirming  the  rights  claimed,  are  rendered. 
This  would  be  a  step  in  the  right  direction  if  the 
statements  presented  to  the  court  were  first  verified 
by  some  impartial  and  expert  examination  of  the 
202 


IRRIGATION   IN   CALIFORNIA 

stream  and  some  accurate  measurement  of  the  uses 
made  of  the  water  and  the  necessities  of  these 
uses.  At  the  best,  however,  they  can  only  be  con- 
sidered as  makeshifts  and  temporary  expedients. 
They  are  not  a  final  settlement  because  new  rights 
may  be  acquired  at  any  time  by  prescription,  and 
it  is  rare  that  they  settle  all  existing  controversies 
because  an  unwilling  appropriator  cannot  be  com- 
pelled to  submit  his  claim  or  abide  by  the  result. 
Under  the  laws  of  California  it  is  possible  for  A 
to  compel  B  and  C  to  appear  in  court  and  litigate 
their  rights  with  respect  to  his  own,  but  it  is  not 
possible  for  A  to  compel  B  and  C  to  litigate  their 
rights  with  respect  to  each  other.  There  are  few, 
if  any,  streams  in  California  where  the  relative 
rank  of  all  appropriations  has  been  established. 
The  farmer  whose  present  and  prospective  pros- 
perity depends  on  his  water-supply  is  rarely  secure 
in  his  position. 

That  a  development  so  important  and  extending 
over  such  a  long  period  of  time  could  have  taken 
place  without  these  matters  being  finally  settled, 
is  largely  due  to  the  fact  that  appropriators  prefer 
to  submit  to  a  certain  measure  of  injustice  rather 
than  to  enter  upon  expensive  litigation,  and  the 
long  absence  of  public  supervision  has  begotten 
a  fear  of  its  results.  The  present  situation  of 
affairs  cannot,  however,  continue  indefinitely.  As 
the  demand  for  water  increases,  the  evil  results  of 
permitting  every  water  user  to  regulate  his  own 
affairs  will  become  more  and  more  apparent. 
203 


IRRIGATION   INSTITUTIONS 

There  will  be  an  increase  in  injunctions  to  shut 
down  head-gates  on  up-stream  canals.  This,  while 
effective,  does  not  permit  of  the  regulation  and 
modification  necessary  to  secure  the  most  econom- 
ical use  of  the  water,  which  can  be  guaranteed  only 
by  placing  streams  under  competent  administrative 
control. 

The  present  situation  is  unjust  to  the  small  ap- 
propriator  and  gives  a  dangerous  advantage  to  his 
more  wealthy  and  litigious  opponent.  The  ex- 
penses of  a  lawsuit  are  practically  the  same, 
whether  the  water  right  sought  to  be  maintained 
is  for  ten  acres  or  for  a  thousand  acres.  It  is  the 
small  irrigator  who  has  the  greatest  need  for  a 
definition  of  his  water  right,  and  in  order  to  secure 
j  ustice  to  him  and  to  the  public,  it  must  be  deter- 
mined under  what  conditions  each  user  shall  re- 
ceive water,  how  much  he  shall  receive,  and  how 
he  shall  be  protected  in  times  of  scarcity. 

The  history  of  the  water-right  litigation  before 
referred  to  is  typical  of  what  has  been  going  on  on 
every  stream  where  water  is  scarce  and  valuable. 
The  cause  is  to  be  found  in  the  failure  of  the  State 
to  discharge  its  duty  toward  those  who  create 
wealth  when  they  put  water  to  use  in  irrigation. 
This  duty  will  never  be  performed  so  long  as  it 
leaves  any  one  in  doubt  as  to  what  is  his  just  share 
of  a  stream's  flow,  or  puts  upon  him  the  entire 
expense  of  defending  that  right  when  it  is  assailed. 
Users  of  water  ought  to  be  protected  in  their  rights 
by  the  public  authorities.  The  expense  of  this 

204 


IRRIGATION   IN   CALIFORNIA 

should  be  paid  for  by  public  taxation.  It  is  the 
only  way  in  which  justice  can  be  assured,  and  the 
largest  and  best  use  of  the  water-supply  obtained. 
Leaving  the  ownership  of  streams  to  be  fought 
over  in  the  courts  and  titles  to  water  to  be 
established  in  ordinary  suits  at  law  has  never  re- 
sulted in  the  creation  of  satisfactory  conditions, 
and  never  will.  Under  present  conditions  the 
same  issues  are  tried  over  and  over  again.  Each 
decision,  instead  of  being  a  step  toward  final  set- 
tlement, too  often  creates  new  issues  which  in  turn 
have  to  be  litigated.  The  suit  of  one  canal  com- 
pany against  another  company  may  settle  the 
rights  of  these  companies  as  against  each  other, 
but  it  settles  nothing  with  respect  to  other  appro- 
priators  not  made  parties  to  the  litigation,  and  the 
whole  controversy  may  be  opened  up  at  any  mo- 
ment. A  stream  with  three  appropriators  has  the 
foundation  for  at  least  three  lawsuits :  A  v.  B ; 
A  v.  C ;  and  B  v.  C.  If  there  are  four  appro- 
priators the  way  is  open  for  six  adjudications. 
Often  the  appropriators  from  a  stream  are  num- 
bered by  scores  and  even  hundreds.  It  might  be 
interesting  to  compute  the  number  of  legal  con- 
flicts necessary  to  a  judicial  determination  of  the 
relative  rights  on  streams  like  the  Sacramento, 
and  these  will,  under  the  present  procedure,  in- 
crease with  years,  because  there  will  be  new  ap- 
propriations, and  old  ones  will  be  extended.  It  is 
not  surprising  that  the  petition  for  an  investigation 
by  the  people  of  California  should  state  that  the 
205 


IRRIGATION    INSTITUTIONS 

litigation  is  appalling.  It  could  not  be  otherwise. 
The  absence  of  public  control  makes  litigation  as 
natural  a  product  as  are  weeds  in  a  neglected  field. 
There  can  be  no  stability  under  the  present 
situation.  The  law  affords  no  means  of  enforcing 
a  right  when  once  adjudicated  except  through 
another  lawsuit.  Irrigators  cannot  live  in  peace. 
Litigation  and  controversy  are  forced  upon  them. 
To  acquiesce  in  a  new  diversion,  through  sympathy 
or  for  the  sake  of  peace,  may  lay  the  foundation 
for  an  adverse  right  by  prescription,  and  end  in 
the  curtailment  or  the  overthrow  of  all  the  rights 
of  the  peace  lover.  This  uncertainty  and  the  fear 
of  being  supplanted  which  grows  out  of  it  is  the 
cause  of  much  of  the  hostility  with  which  ap- 
propriators  regard  new  ditches  and  is  the  motive 
behind  much  of  the  extravagance  and  waste  which 
sometimes  prevail  in  the  use  of  water.  With  a 
right  clearly  defined  and  protected  its  owner  has 
no  fear  of  shortage  in  time  of  need,  and  he  is  will- 
ing, when  his  crops  do  not  require  water,  to  have 
it  utilized  by  others ;  but  when  the  right  is  inse- 
cure or  not  defined  the  instinct  of  self-protection 
makes  an  Ishmaelite  of  every  water  user.  His 
hand  must  be  against  every  man  as  every  man's 
hand  is  against  him.  Duty  to  himself  and  to  those 
dependent  upon  him  makes  it  necessary  that  he 
shall  use  all  means  at  his  command  to  discourage 
the  establishment  of  rights  which  may  later  inter- 
fere with  his  necessary  use  of  the  water.  Under 
such  a  system  every  new  appropriator  is  a  new 
206 


IRRIGATION    IN   CALIFORNIA 

element  of  uncertainty  and  another  menace  to  the 
peace  of  the  community. 

The  whole  system  is  wrong.  It  is  wrong  in 
principle  as  well  as  faulty  in  procedure.  It  as- 
sumes that  the  establishment  of  titles  to  the  snows 
on  the  mountains  and  the  rains  falling  on  the  pub- 
lic land  and  the  water  collected  in  the  lakes  and 
rivers,  on  the  use  of  which  the  development  of  the 
State  must  in  a  great  measure  depend,  is  a  private 
matter.  It  ignores  public  interests  in  a  resource 
upon  which  the  enduring  prosperity  of  communi- 
ties must  rest.  It  is  like  A  suing  B  for  control  of 
property  which  belongs  to  C.  Many  able  attor- 
neys hold  that  these  decreed  rights  will  in  time  be 
held  invalid  because  when  they  were  established 
the  public,  the  real  owner  of  the  property,  did  not 
have  its  day  in  court. 

The  responsibility  for  this  situation  rests  first 
of  all  with  irrigators  and  ditch-owners.  It  arises 
from  their  reluctance  to  submit  to  any  sort  of 
supervision  or  to  effective  control  of  streams.  Al- 
though attorneys  and  judges  have  had  much  to  do 
with  these  controversies  over  water  rights,  they 
are  in  no  sense  responsible  for  their  creation.  In 
fact,  under  the  present  situation,  the  courts  are  the 
only  protection  against  a  rule  of  force  or  anarchy. 
At  present  no  class  of  citizens  are  doing  more  to 
reform  the  irrigation  laws  than  attorneys.  Wher- 
ever they  have  been  appealed  to  they  have  given 
their  time  and  influence  to  promote  the  success  of 
investigations  looking  to  reforms.  One  of  the 

207 


IRRIGATION    INSTITUTIONS 

ablest  arguments  thus  far  presented  in  favor  of 
a  special  tribunal  to  make  a  final  determination 
of  all  existing  rights  was  made  by  a  judge  who, 
through  painful  experience,  had  become  impressed 
with  the  danger  of  leaving  these  matters  to  be  set- 
tled by  litigation,  in  which  it  often  happens  that 
all  the  issues  involved  are  not  fully  presented,  and 
where  the  failure  to  do  this  always  includes  the 
judge  among  its  victims. 

The  contrast  between  the  conditions  which  gov- 
erned the  early  use  of  water  in  California  and  in 
Colorado  is  not  greater  than  the  differences  in 
present  methods.  It  seems  somewhat  remarkable 
that  the  two  leading  irrigation  States  of  the  West 
should  be  so  unlike  in  the  character  of  their  water 
laws  and  irrigation  customs.  For  administrative 
purposes  Colorado  is  divided  into  districts  based  on 
drainage  lines ;  there  are  no  such  districts  in  Cali- 
fornia. In  Colorado  all  the  rights  to  water  in  a 
district  are  determined  by  a  comprehensive  judicial 
proceeding  so  that  every  appropriator  of  water 
knows  both  the  amount  of  his  right  and  its  rela- 
tion to  other  appropriations  from  the  same  supply ; 
there  is  no  provision  for  reaching  such  a  result  in 
California.  In  Colorado  the  rights  of  prior  appro- 
priators,  when  established,  are  protected  in  times 
of  scarcity  by  the  public  officials  ;  in  California  each 
appropriator  has  to  scramble  for  all  he  gets,  re- 
gardless of  his  rights.  In  Colorado  the  State  en- 
gineer's office  is  an  office  of  record  for  all  rights 
to  water  from  all  streams,  and  the  State  engineer 

208 


IRRIGATION   IN   CALIFORNIA 

measures  the  available  water-supply  and  super- 
vises its  distribution ;  in  California  there  is  neither 
such  a  place  of  record  nor  such  an  official.  These 
comparisons  are  not  intended  to  show  the  supe- 
riority of  one  State  over  another,  but  rather  to  illus- 
trate how  Western  irrigation  has  been  shaped  by 
local  influences  rather  than  by  prearranged  plans  ; 
but  from  many  conversations  with  irrigators  in 
both  States  there  is  no  doubt  that  the  order  and 
system  of  Colorado  have  been  of  great  service  to 
the  users  of  water,  that  growth  and  prosperity 
have  been  promoted,  and  discord,  friction,  and 
anxiety  have  been  lessened  through  their  influ- 
ence. No  one  in  Colorado  would  think  of  doing 
without  the  services  of  the  water  commissioner, 
nor  can  irrigators  there  understand  how  it  is  pos- 
sible for  water  users  in  California  to  live  in  peace 
with  each  other  without  the  assistance  of  some 
such  arbiter. 

Under  a  rational  irrigation  code  titles  to  water 
are  established  like  titles  to  public  land,  by  pro- 
ceedings which  are  wholly  ministerial.  This  is 
the  case  under  the  Northwest  Irrigation  Act  of 
Canada  and  under  the  Wyoming  irrigation  law. 
The  latter  will  be  discussed  in  a  subsequent 
chapter. 

Irrigation  District  Law 

The  difficulties  encountered  by  individuals  and 
corporations  in  the  construction  and  operation  of 
irrigation  works   led,  in  1887,  to  the   passage   of 
p  209 


IRRIGATION    INSTITUTIONS 

what  is  generally  known  as  the  Wright  Act.  It 
provided  that  all  of  the  land  susceptible  of  irriga- 
tion from  the  same  system  of  works  might  be 
organized  into  a  district  resembling  in  some  re- 
spect municipal  organizations,  and  these  districts 
could  be  taxed  to  pay  for  ditches  and  canals  to 
water  them.  These  districts  were  authorized  to 
acquire  and  own  real  estate,  purchase  water 
rights,  and  purchase  or  build  ditches  and  canals, 
and  to  issue  bonds  to  raise  the  necessary  funds. 
It  was  hoped  in  this  way  to  bring  about  the 
breaking  up  of  large  estates,  or  at  least  to  pre- 
vent their  owners  from  obstructing  the  develop- 
ment of  other  lands.  To  this  end  all  lands  bene- 
fitted  were  to  be  taxed  to  pay  for  the  works  built, 
and  the  law  was  framed  in  such  a  way  as  to  give 
great  power  to  those  who  were  favorable  to  con- 
struction and  to  restrict  the  power  of  the  opposi- 
tion. 

A  petition  of  fifty  freeholders  was  sufficient  to 
begin  the  organization  of  a  district.  In  the  voting 
on  districts,  the  owner  of  ten  thousand  acres  of 
land  had  no  more  voice  than  the  owner  of  ten 
acres.  If  the  project  was  approved  by  the  board 
of  supervisors,  the  district  was  authorized  to  issue 
bonds  which  became  a  lien  on  the  lands  of  those 
who  opposed  the  district  as  well  as  those  who 
favored  it.  In  this  way  it  was  made  possible  to 
place  such  a  burden  upon  farms  as  to  result  in 
their  confiscation  if  the  irrigation  projects  did  not 
prove  a  success. 

2IO 


IRRIGATION   IN   CALIFORNIA 

There  is  no  question  that  the  purpose  behind 
this  law  was  a  praiseworthy  one.  It  sought  to  put 
an  end  to  the  speculative  ownership  of  water  and 
to  remove  the  obstacles  to  construction  which  were 
harassing  ditch-builders.  Unfortunately,  in  the 
effort  to  frame  a  law  which  would  override  all 
obstacles  the  safeguards  against  abuses  were  dis- 
regarded. The  trustees  of  many  of  these  districts 
had  to  assume  large  responsibilities  and  conduct 
large  enterprises.  In  some  instances,  men  who 
had  probabty  never  expended  $5°°  m  their  lives 
were  called  upon  to  direct  the  outlay  of  $500,000. 
The  result  was  that  they  made  many  errors  of 
judgment  and  in  some  instances  were  deliberately 
dishonest.  Mistakes  were  made  in  the  estimates 
of  cost,  these  nearly  always  being  below  the  truth. 
Worthless  water  rights  were  purchased  at  extrava- 
gant prices.  When  the  first  issue  of  bonds  was 
exhausted  and  new  issues  were  necessary  to  com- 
plete the  work  and  give  it  any  value,  it  was  found 
difficult  to  dispose  of  these  under  the  conditions 
of  the  State  law,  which  required  that  they  should 
not  be  sold  for  less  than  90  per  cent  of  their  face 
value.  The  interests  opposed  to  the  districts 
fought  them  vigorously,  and  to  a  greater  outlay 
for  construction  than  was  anticipated  was  added 
an  unexpected  and  large  outlay  to  meet  the  ex- 
penses of  litigation. 

In  an  effort  to  overcome  these  obstacles  and 
proceed  with  construction  the  law  was  constantly 
evaded.  Bonds  were  sold  to  third  parties  in  order 
211 


IRRIGATION   INSTITUTIONS 

to  be  passed  from  the  districts  to  contractors,  who 
could  not  receive  them  in  direct  payment  for  work 
done.  Work  was  contracted  for  at  high  prices  in 
order  that  bonds  could  be  disposed  of  at  par  and 
still  compensate  the  contractor  for  his  outlay. 
Waterworks  were  constructed  at  private  expense 
with  the  understanding  that  bonds  were  to  be 
taken  in  payment  when  finished,  the  law  permit- 
ting works  to  be  purchased  in  this  way.  As  ex- 
penses augmented  and  taxation  to  meet  interest 
charges  became  burdensome,  landowners  organ- 
ized to  evade  the  payment  of  these  obligations  by 
attacking  the  validity  of  the  law  or  the  action  of 
the  trustees.  The  irregularities  growing  out  of 
mismanagement  or  inexperience  gave  great  oppor- 
tunities for  doing  this,  and  although  the  constitu- 
tionality of  the  law  has  been  sustained,  many  of 
the  districts  have  been  declared  invalid. 

The  outcome  of  this  law  is  much  to  be  regretted. 
It  is  difficult  to  estimate  the  benefits  which  Cali- 
fornia would  have  derived  during  the  past  ten  years 
if  the  works  planned  under  these  districts  could 
have  been  completed  and  put  into  successful  opera- 
tion. It  is  certain  that  millions  of  dollars  would 
have  been  added  to  the  State's  taxable  and  pro- 
ductive wealth.  There  is  much  in  the  theory  of 
this  law  to  commend  it.  It  involves  the  idea  of 
local  self-government,  it  retains  under  the  control 
of  farmers  the  water  which  they  use,  and  prevents 
local  rivalries  and  jealousies,  which  are  so  likely 
to  arise  between  irrigation  works  constructed  by 

212 


IRRIGATION   IN    CALIFORNIA 

individuals  or  corporations.  The  failure  of  the 
Wright  Law  must  not,  however,  be  charged  en- 
tirely to  the  act.  The  conditions  under  which  it 
operated  must  also  be  taken  into  account.  If 
there  had  been  a  State  engineer  to  pass  upon  the 
adequacy  of  the  water-supply  and  the  reasonable- 
ness of  the  estimates  of  cost,  many  of  the  errors 
made  would  have  been  averted.  One  mistake  in 
the  law  was  that  it  allowed  a  vote  to  all  residents 
entitled  to  the  ballot  for  other  purposes,  and  this 
mistake  has  been  rectified  in  similar  acts  passed 
elsewhere.  Only  property  owners  should  have 
had  a  voice  in  the  formation  of  districts  and  in 
the  issuance  of  bonds,  and  voting  should  have 
been  proportional  to  the  property  represented. 

After  the  panic  in  1893,  many  of  the  works 
begun  were  practically  abandoned,  but  within  the 
last  two  or  three  years  efforts  have  been  made  to 
revive  construction,  and  one  of  the  most  important, 
the  Turlock  Irrigation  Canal,  has  been  completed. 
Work  has  been  resumed  on  a  number  of  other 
important  irrigation  projects,  and  it  is  believed 
that  much  of  the  expenditure,  which  at  one  time 
was  regarded  as  absolutely  lost,  will  in  part  be 
made  productive.  The  lesson  of  the  Wright  Law 
is  the  lesson  of  irrigation  in  all  countries  and  at 
all  times.  There  can  be  no  peace  and  stability 
among  irrigators  without  public  administration  of 
the  streams  from  which  the  water-supply  is  taken. 


213 


IRRIGATION   INSTITUTIONS 

Fixing  Rates 

The  subject  of  rates  for  water  furnished  to 
irrigators  has  provoked  more  controversy  in  Cali- 
fornia than  in  all  of  the  other  States  combined. 
This  is  due  in  part  to  the  great  value  of  water. 
The  statute  gives  to  boards  of  supervisors  in 
counties  in  which  water  is  sold,  the  right  to 
regulate  rates,  and  requires  that  rates  shall  be  so 
fixed  as  to  yield  a  fair  return  on  the  investment, 
but  there  is  great  difficulty  in  determining  this. 
The  earning  capacity  of  canals  is  the  chief  factor 
in  fixing  the  value  of  property,  but  this  capacity 
in  turn  is  largely  determined  by  the  rates  charged 
for  water.  The  causes  which  lead  to  differences 
of  opinion  regarding  what  are  reasonable  rates  are 
discussed  elsewhere  and  need  not  be  considered 
further  here. 

Another  objection  to  the  law  is  the  fact  that 
some  canals  cross  county  lines.  Supervisors  of 
one  county  are  not  bound  by  the  acts  of  an- 
other, and  it  is  possible  to  have  two  sets  of  rates 
for  water  from  the  same  works.  The  remedy  would 
seem  to  be  to  remove  this  power  as  far  as  possible 
from  all  local  influences  by  creating  some  general 
authority  like  the  State  engineer's  office. 

Many  of  the  controversies  about  water-rates 
involve  more  than  the  question  of  rentals.  A 
large  part  of  the  water  supplied  to  irrigators  is 
delivered  on  contracts.  In  many  of  these  con- 
tracts, the  payments  for  water  include  two  items. 
214 


IRRIGATION   IN   CALIFORNIA 

A  charge  is  made  for  the  right  to  receive  it 
and  an  additional  charge  for  the  service  of  de- 
livering. On  the  one  hand,  it  is  held  that  who- 
ever appropriated  water  acquires  property  which 
he  can  dispose  of  under  contract,  and  the  decisions 
of  the  California  supreme  court  seem  to  support 
this  contention,  although  it  appears  to  be  a  danger- 
ous doctrine ;  but  in  several  decisions  rendered  by 
Judge  Ross  of  the  United  States  Circuit  Court, 
it  is  held  that  water  rights  are  not  property  and 
that  there  is  no  authority  in  the  laws  of  California 
to  make  a  charge  for  them  separate  and  indepen- 
dent of  the  rates  for  the  delivery  of  water.  It 
would  seem  that  there  should  be  no  difficulty  in 
reaching  a  definite  conclusion  on  an  issue  so  mo- 
mentous, but,  although  there  have  been  a  number 
of  decisions  both  of  the  Supreme  Court  of  the 
United  States  and  of  the  supreme  court  of  Cali- 
fornia, the  question  is  yet  a  controverted  one.  In 
one  of  the  latest  of  these  cases,  it  is  held  that  a 
water  company  has  a  right  to  contract  with  a 
consumer  for  both  the  water  right  and  the  rates 
at  which  the  water  will  be  furnished,  but  that 
these  rates  are  subject  to  the  regulation  and 
control  of  the  State.  If,  however,  a  water  right 
is  property,  it  is  difficult  to  understand  how  the 
State  can  regulate  the  price  which  shall  be  charged 
or  paid  for  it. 

Another  important  question  with  reference  to 
water  rates  in  California  which  remains  undeter- 
mined is  whether  the  boards  of  supervisors  have 


IRRIGATION   INSTITUTIONS 

the  power  to  set  aside  written  contracts  for  water. 
This  issue  has  been  involved  in  cases  before  both 
the  local  and  United  States  courts.  In  the  case 
of  Souther  v.  San  Diego  Flume  Company,  the 
circuit  court  of  appeals  held  that  corporations 
furnishing  water  for  irrigation  were  private  cor- 
porations and  that  contracts  entered  into  with 
consumers  could  not  be  set  aside  by  public  offi- 
cials. While  this  decision  is  in  accord  with  the 
general  tendency  of  California's  irrigation  develop- 
ment, it  seems  to  be  a  mistaken  one.  If  the  water 
of  streams  can  be  made  private  property,  it  is 
beyond  question  that  those  who  distribute  it  can 
charge  what  they  please  for  it ;  but  even  the  laws 
of  California  scarcely  seem  to  warrant  this  assump- 
tion, and  some  of  the  decisions  of  the  State  courts 
have  held  to  the  view  that  these  are  quasi-public 
corporations  where  they  distribute  the  water  of 
public  streams.1 

The  law  provides  that  land  once  irrigated  shall 
have  equal  rights  with  other  lands  of  their  class, 
and  cannot  be  deprived  of  water  at  the  pleasure  of 
the  canal  owner.  But  there  is  no  official  to  enforce 
this  law.  The  State  offers  no  direct  rewards  for 
economy,  and  no  direct  punishment  for  a  failure 
to  secure  it,  hence  appropriators  are  permitted  to 
make  regulations  to  suit  themselves.  These,  as  a 
rule,  are  satisfactory ;  in  most  instances  as  liberal 
to  water  users  as  elsewhere.  This  is  not  always 
the  case,  however.  An  investigation  of  this  sub- 

1  McFadden  v.  Supervisors,  74  Cal.  571. 
216 


IRRIGATION   IN   CALIFORNIA 

ject  brought  the  following  results :  In  reply  to  the 
question  as  to  whether  or  not  water  had  been 
furnished  in  the  amount  needed  and  at  the  time 
needed,  out  of  47  persons,  43  answered  no  and 
4  answered  yes. 

Some  of  the  answers  to  the  inquiry  as  to  the 
length  of  the  delay  in  receiving  the  water  after  it 
was  asked  for,  were  as  follows  :  — 

"A  few  hours;"  "Did  not  have  to  wait  long 
in  1900;"  "Fourteen  days;"  "Sometimes  have 
to  wait;"  "Sometimes  as  long  as  two  weeks;" 
"  Fifteen  days ;  "  "  One  to  three  weeks ;  "  "  Twenty 
days ;  "  "  About  three  weeks  after  it  was  needed;" 
"  Three  weeks ;  "  "  One  week  to  one  month ;  " 
"  Two  to  four  weeks ;  "  "  About  three  weeks ; " 
"Sometimes  we  have  to  wait  three  to  four  weeks;" 
"  Three  to  four  weeks  ;  "  "  Always  have  to  wait  in 
August  and  September ; "  "  The  brush  dam  was 
put  in  late  and  everybody  wanted  the  water  before 
it  was  ready ;  "  "  Three  to  four  weeks ;  "  "  About 
four  weeks  ;  "  "  Four  weeks  ;  "  "  Thirty  days  ;  " 
"  Sometimes  wait  a  month  or  more ;  "  "  About  one 
month ;  "  "  One  month." 

The  Future  Development  of  California 

A  number  of  works  which  have  slumbered  for 
some  years  have  recently  been  completed,  and 
every  indication  points  to  the  construction  of  a 
number  of  other  large  canals  in  the  near  future, 
especially  if  there  can  be  such  changes  in  laws  as 
217 


IRRIGATION   INSTITUTIONS 

will  give  stability  to  investments  of  this  character ; 
but  in  addition  to  monumental  works,  California 
abounds  in  many  opportunities  for  the  construction 
of  small  ditches.  A  single  farmer  or  a  few  farmers 
working  together  can  turn  creeks  upon  their  land  to 
the  benefit  of  both  themselves  and  the  public.  The 
carrying  out  of  these  enterprises  will  be  promoted 
by  a  law  which  will  give  to  individuals  the  power 
to  acquire  by  condemnation  the  right  of  way  for 
such  ditches.  Rights  of  way  for  ditches  owned  by 
corporations  engaged  in  the  distribution  of  water 
to  others  can  now  be  condemned,  but  there  is  no 
provision  for  securing  rights  of  way  where  ditches 
are  built  by  individuals  to  water  their  own  lands. 
There  seems  to  be  no  reason  why  this  distinction 
should  be  retained. 

Although  a  candid  statement  of  the  irrigation 
situation  in  California  has  involved  some  criticism, 
the  situation  on  the  whole  is  full  of  hope.  Mis- 
takes which  have  retarded  development  have  not 
been  sufficient  to  overcome  the  manifold  advan- 
tages of  the  State,  nor  to  prevent  both  a  large 
development  and  great  prosperity.  Instead  of 
being  a  cause  for  discouragement,  they  should  be 
an  incentive  toward  the  creation  of  better  condi- 
tions, and  this  is  the  dominant  spirit  and  temper  of 
the  State  at  the  present  time.  In  all  parts  of  the 
State  the  sentiment  in  favor  of  wise  laws  and  just 
policies  is  active  and  aggressive.  The  California 
Water  and  Forest  Association  and  a  number  of 
other  kindred  organizations  have  in  their  mem- 
218 


IRRIGATION   IN   CALIFORNIA 

bership  practically  all  of  the  leaders  of  thought 
and  business  in  the  State,  and  they  are  all  en- 
listed in  the  effort  to  secure  a  code  of  water  laws 
which  shall  be  worthy  of  the  twentieth  century 
and  of  one  of  the  greatest  States  in  its  foremost 
republic. 


219 


CHAPTER   X 

IRRIGATION  IN  UTAH 

WHEN  the  Mormon  emigrants  started  on  their  lone- 
some journey  across  the  arid  wastes  of  the  uninhab- 
ited West,  their  first  thought  was  to  find  a  home  so  re- 
mote from  human  settlement  that  they  could  follow 
their  religious  beliefs  and  practices  without  being 
interfered  with.  Locating  in  an  unknown  desert, 
in  a  region  without  established  government,  and 
where  there  was  question  whether  sovereignty  lay 
in  the  United  States  or  Mexico,  they  had  to  begin 
at  the  foundation  in  building  their  commonwealth. 
Irrigation  was  necessary  because  crops  could  not 
be  grown  without  it,  and  it  was  only  through  agri- 
culture that  they  could  be  saved  from  starvation. 
The  leader  of  these  pioneers,  with  wisdom  if  not 
inspiration,  made  agriculture  the  foundation  in- 
dustry of  his  people.  In  this  respect,  the  begin- 
nings of  Utah  were  different  from  those  of  every 
other  arid  State.  Here,  agriculture  was  from  the 
first  the  principal  industry ;  in  many  of  the  others 
it  was,  at  the  outset,  a  mere  incident.  Because  of 
its  paramount  importance,  the  laws  and  customs 
under  which  it  was  developed  had  early  a  careful 
consideration  and  took  a  different  trend  from  the 
beginnings  in  other  States.  Colorado  and  Califor- 
nia borrowed  their  early  water  laws  and  customs 
from  the  miners ;  Utah  made  hers  first  hand.  The 

220 


IRRIGATION    IN   UTAH 

system  adopted  by  the  territorial  legislature  at  its 
first  session  in  1852  contains  some  of  the  best  fea- 
tures of  the  highest  development  of  irrigation  law 
as  it  is  now  understood.  Public  ownership  of 
natural  resources,  including  water,  was  one  of  the 
foundation  principles  of  the  State  of  Deseret,  and 
later  of  the  Territory  of  Utah,  as  is  shown  in  the 
following  extract  from  a  statute  of  the  first  terri- 
torial legislature :  — 

The  county  courts  shall  .  .  .  have  control  of  all  timber, 
water  privileges,  or  any  watercourse  or  creek,  to  grant  mill 
sites,  and  exercise  such  powers  as  in  their  judgment  shall  best 
preserve  the  timber  and  subserve  the  interests  of  the  settle- 
ments in  the  distribution  of  water  for  irrigation  or  other  pur- 
poses. Grants  of  rights  held  under  legislative  authority  shall 
not  be  interfered  with.  (Territorial  Laws  of  Utah,  Chap,  i, 
Sec.  38,  approved  Feb.  4,  1852.) 

To  carry  this  law  into  effect,  the  court  of  Salt 
Lake  County,  then  the  centre  of  settlement,  passed 
the  following  order  :  — 

Be  it  ordered,  that  it  shall  hereafter  be  the  duty  of  all  or  any 
persons  of  this  county  petitioning  this  court  for  any  right  of 
kanyon  or  location  of  county  road,  or  any  other  privilege  which 
by  law  is  made  the  right  of  this  court  to  grant,  shall  give  pub- 
lic notice  of  their  intention  by  posting  up  advertisements  of 
the  same  in  three  of  the  most  public  places  in  the  county  at 
least  ten  days  previous  to  the  sitting  of  the  court  at  which 
time  the  petition  is  to  be  presented. 

This  was  subsequently  amended  by  requiring 
the  publication  of  notices  at  least  twice  in  the 
Deseret  News. 

Under  this  law  the  court  granted  rights  to  the  use 
of  the  streams  of  Salt  Lake  County,  and  appointed 

221 


IRRIGATION    INSTITUTIONS 

commissioners  to  enforce  them.  When  there  was 
doubt  as  to  the  advisability  of  granting  any  petition 
the  court  took  testimony,  visited  the  region  in  ques- 
tion, and  satisfied  themselves  as  to  the  conditions, 
and  either  granted  or  refused  the  rights,  as  the 
facts  justified. 

We  have  here,  then,  at  the  very  beginning  of 
irrigation  development  in  this  country,  the  recogni- 
tion of  public  ownership,  the  granting  of  rights  by 
an  executive  board  which  was  familiar  with  the  facts, 
and  the  protection  of  the  rights  granted  by  the  board 
making  the  grants.  Irrigation  law  has  not  gone 
beyond  this  to-day,  except  in  the  matter  of  detail. 

For  twenty-eight  years  this  was  the  only  water- 
right  law  of  the  Territory.  In  1 880  it  was  superseded 
by  a  more  elaborate  statute  which  made  county  se- 
lectmen ex-officio  water  commissioners,  with  power 
to  hear  and  determine  all  claims  to  water,  settle  dis- 
putes, and  appoint  commissioners  to  divide  streams 
and  distribute  water.  They  were  to  issue  certifi- 
cates showing  their  findings  on  all  claims  submitted 
to  them.  The  law  also  provided  for  the  appoint- 
ment of  inter-county  boards,  with  similar  powers, 
where  parties  in  different  counties  used  water  from 
the  same  source.  This  law  did  little  more  than 
state  in  detail  the  practice  of  the  county  courts 
under  the  old  law.  It  did,  however,  abandon  the 
principle  contained  in  the  former  law :  that  the 
water  of  streams  was  public  property,  and  that,  in 
order  to  obtain  rights  to  it,  its  owner,  the  public, 
must  confirm  the  right.  Under  the  new  law,  water 
222 


IRRIGATION   IN   UTAH 

was  treated  as  belonging  to  nobody  and  open  to 
appropriation  without  any  legal  formality.  The 
county  selectmen  who  composed  the  county  court 
were  not  to  hear  petitions  and  grant  rights,  but 
were  to  hear  and.  determine  claims  and  settle  dis- 
putes. This  was  held  to  be  a  judicial  function  and 
rendered  the  law  void.  It  was,  however,  enforced 
in  a  number  of  counties  in  the  Territory,  where 
the  irrigators  presented  their  claims  to  the  com- 
missioners and  received  certificates  of  their  rights. 
As  this  law  is  void,  these  certificates  have  no 
value,  except  to  show  that  certain  rights  existed  at 
the  time  of  their  issuance. 

In  1897  Utah  abandoned  the  distinctive  features 
of  its  early  irrigation  law  to  copy  those  common  to 
the  arid  States.  This  law  provides  that  rights  to 
the  use  of  the  unappropriated  waters  of  the  State 
may  be  acquired  by  appropriation,  and  that  the 
appropriator  must  post  and  file  a  notice  of  the 
intended  diversion.  It  further  provides  that  per- 
sons who  had  acquired  rights  before  the  passage 
of  the  act  "may  file  for  record  a  declaration  of 
their  rights  "  ;  but  that  the  failure  to  file  this  dec- 
laration will  not  cause  a  forfeiture.  The  purpose 
of  this  law,  here  as  elsewhere,  was  to  provide  a 
permanent  record  of  all  rights  to  water.  Before 
its  passage  the  entire  flow  of  most  of  the  streams 
of  the  State  was  appropriated,  and  as  the  record- 
ing of  such  rights  is  made  optional,  the  law  has 
proven  of  no  practical  use.  Outside  of  this,  it  is 
of  little  value,  because  there  is  no  restriction  upon 
223 


IRRIGATION   INSTITUTIONS 

the  claims  which  may  be  filed,  and  no  examination 
or  record  to  show  whether  the  works  described  in 
the  notices  have  been  built.  Similar  records  have 
been  discussed  in  the  preceding  chapters. 

This  brief  outline  includes  all  the  laws  which 
have  been  enacted  to  govern  the  acquirement  of 
water  rights  in  Utah.  So  far  as  the  methods  of 
obtaining  water  rights  are  concerned,  the  State 
has  gone  backward  from  the  position  taken  in  1852. 
To-day  the  individual  or  company  wishing  to  ob- 
tain a  water  right  can  nowhere  find  any  complete 
record  of  the  existing  rights,  there  is  no  one  to 
whom  they  can  apply  to  find  out  whether  there 
is  water  to  be  had,  or  who  has  authority  to  approve 
their  taking  water  or  to  protect  them  in  its  use  if 
they  do  so.  The  only  method  is  to  build  works 
and  take  water  until  some  one  who  is  injured,  or 
thinks  he  is,  obtains  an  injunction  from  the  courts 
and  stops  the  new  appropriation;  or  until  a  still 
later  appropriator  takes  away  their  water-supply 
and  compels  them  to  appeal  to  the  courts  for  pro- 
tection against  the  later  comer. 

In  1901  a  law  was  passed  for  the  appoint- 
ment of  water  commissioners  to  divide  the  wa- 
ters of  streams  among  those  entitled  to  their  use 
"  according  to  the  prior  rights  of  each,"  but  the 
water  commissioner  is  in  no  better  situation  than 
the  prospective  appropriator  so  far  as  finding  out 
what  are  the  "prior  rights  of  each"  irrigator. 

The  valley  of  the  Jordan  River  in  Utah  is  the 
birthplace  of  irrigation  on  this  continent  so  far  as 
224 


IRRIGATION   IN   UTAH 

English-speaking  people  are  concerned,  and  it  is 
there  that  titles  to  water  ought  to  be  most  clearly 
defined  and  most  stable.  The  irrigators  are  largely 
members  of  one  faith  and  the  foundation  of  their 
industrial  organization  is  cooperation.  The  farm- 
ers of  this  valley  have  shown  exceptional  ability 
in  the  practical  use  of  water  and  in  the  creation  of 
regulations  for  its  economical  division  from  ditches, 
but  an  entirely  different  situation  is  disclosed  when 
a  study  is  made  of  the  titles  to  water. 

Utah  Lake  is  the  source  of  the  Jordan  River. 
The  lake  is  fed  by  several  streams  of  considerable 
size  and  by  a  number  of  smaller  ones.  The  water- 
supply  of  the  Jordan  depends  upon  the  flow 
of  these  tributary  streams.  Every  diversion  of  a 
tributary  affects  the  water-supply  of  the  main  river 
and  has  its  influence  on  the  stability  of  rights  to 
this  supply.  In  order,  therefore,  to  protect  these 
rights  and  to  secure  a  complete  and  lasting  settle- 
ment of  titles,  it  is  necessary  that  priorities  on  the 
main  stream  and  on  the  tributaries  should  run  con- 
secutively, as  they  do  now  in  the  water  divisions  of 
Colorado  and  Wyoming.  It  is  also  necessary  that 
there  should  be  some  authority  to  enforce  these 
priorities  throughout  the  entire  drainage  basin. 
Nothing  of  the  kind  exists.  The  rights  on  the 
Jordan  have  been  adjudicated  as  though  its  water- 
supply  was  independent  of  everything  else.  The 
rights  on  each  tributary  are  adjudicated  without 
any  respect  to  priorities  below.  Even  sections  of 
some  of  these  tributary  streams  are  adjudicated 
Q  225 


IRRIGATION   INSTITUTIONS 

independently  of  other  sections,  and  tributaries  of 
tributaries  have  independent  priorities.  In  1901 
the  rights  to  the  Jordan  were  adjudicated  in  a  pro- 
ceeding which  lasted  the  longest  time  and  is  said  to 
have  cost  the  most  money  of  any  lawsuit  ever  waged 
in  the  State.  Almost  immediately  after  the  adjudi- 
cation, two  new  claims  were  filed,  and  if  the  work 
is  carried  out  it  will  compel  all  the  parties  who  have 
just  been  to  such  great  expense  in  defending  their 
rights  to  begin  again  this  legal  fight  for  existence. 

On  the  Spanish  Fork,  there  have  been  nine  law- 
suits over  water  titles  in  the  past  ten  years ;  each 
suit  has  been  brought  for  the  purpose  of  quieting 
title.  The  trial  of  the  first  one  occupied  two  years. 
Another  one  lasted  five  years,  and  in  the  ten  years 
some  of  these  titles  have  been  quieted  four  times. 
On  another  tributary  the  litigation  over  water  rights 
is  reported  to  have  cost  $75,000.  Two  trials  in  the 
lower  court  and  one  appeal  to  the  supreme  court 
have  already  been  had  in  an  attempt  to  settle  the 
priorities  of  another  tributary.  In  each  case  all 
the  waters  of  the  stream  in  controversy  have  been 
decreed  to  the  appropriators  along  it,  and  in  no 
case  has  any  attention  been  paid  to  the  natural 
relation  which  exists  between  the  rights  on  these 
tributaries  and  on  the  main  stream. 

The  growing  use  of  water  in  Utah  for  power 
purposes  is  aggravating  the  evils  connected  with 
the  settlement  of  titles  to  water  for  irrigation.  In 
1882  the  county  court  of  Salt  Lake  County  con- 
veyed five-sixths  of  the  water  of  the  Jordan  River 
226 


IRRIGATION    IN   UTAH 

to  five  companies  by  deed,  giving  each  company  an 
undivided  one-sixth  interest  in  the  stream.  This 
action  was  giving  title  to  water  which  came  from 
streams  flowing  through  six  other  counties,  and  the 
authority  of  the  court  of  one  county  to  make  such 
grant,  it  would  seem,  should  have  been  questioned. 
It  was  not,  however,  and  these  deeds  for  the  time 
settled  all  controversies  over  the  stream's  owner- 
ship. Later  on,  new  issues  arose.  A  part  of  a 
right  belonging  to  the  City  of  Salt  Lake  was  traded 
for  water  rights  in  smaller  streams  nearer  the  city. 
The  river  began  to  be  used  for  power  purposes. 
Out  of  these  changing  conditions  came  the  litigation 
of  1901.  The  parties  to  this  suit  gathered  evidence 
for  two  years.  The  trial  itself  lasted  seventy-two 
days.  The  decision  of  the  court  ignored  every  pre- 
vious settlement  of  water  titles,  and  paid  no  atten- 
tion to  the  deeds  of  the  county  court.  So  far  as  the 
outcome  of  the  litigation  was  concerned,  there  might 
as  well  have  never  been  an  irrigation  statute  in  Utah. 
The  decision  has  been  approved  by  the  supreme 
court,  but  it  cannot  end  the  controversies  over  water 
rights  on  this  stream,  because,  sooner  or  later,  the 
relation  of  the  parties  to  this  suit  to  the  appropria- 
tors  of  the  tributaries  must  be  defined.  Further  liti- 
gation is  inevitable,  and  when  it  comes  it  cannot  help 
overthrowing  everything  which  has  gone  before. 

Nature  of  Water  Rights 

The  recent  laws  of  Utah  make  water  personal 
property  and  permit  the  transfer  of  water  rights 

227 


IRRIGATION   INSTITUTIONS 

like  other  property.  They  may  be  separated  from 
the  land  where  acquired  and  from  the  ditch  where 
diverted,  with  the  exception  that  where  a  water 
right  has  been  used  on  a  piece  of  ground,  the  sale 
of  the  land  conveys  the  water  right  unless  it  is 
specifically  reserved.  This  is  a  complete  reversal 
of  the  early  policy  of  the  Mormons,  which  held 
that  water  rights  should  be  inseparable  from  land. 
While  the  doctrine  of  priority  is  recognized  to 
a  certain  extent,  it  is  modified  by  dividing  rights 
into  classes.  The  law  of  1880  defined  two  classes, 
primary  and  secondary  rights.  Primary  rights 
include  all  rights  acquired  up  to  the  time  when 
the  sum  of  the  rights  equals  the  average  flow  of 
the  stream  at  low-water  stage.  Secondary  rights 
are  rights  acquired  to  any  supply  in  excess  of  the 
average  low-water  flow,  and  are  subject  to  the 
complete  enjoyment  of  primary  rights.  When- 
ever there  is  not  water  enough  for  all  primary 
rights,  the  flow  of  the  stream  is  divided  among 
them  pro  rata.  When  there  is  more  than  enough 
for  the  primary  rights,  but  not  enough  for  all 
secondary  rights,  the  excess  over  the  primary  rights 
is  divided  among  the  secondary  rights  pro  rata. 
\The  law  carries  the  classification  no  farther,  but 
numerous  court  decrees  have  divided  the  rights 
into  more  than  two  classes.  In  adjudicating  the 
rights  on  the  upper  section  of  the  Provo  River  in 
1899  the  court  divided  the  rights  into  ten  classes, 
on  the  same  basis  as  the  primary  and  secondary 
rights  defined  in  the  law.  This  classification  of 
328 


IRRIGATION   IN   UTAH 

rights  has  all  the  advantages  of  the  law  of  priority 
adopted  in  the  other  States  of  the  West,  and  none 
of  its  disadvantages.  A  farmer  who  has  made 
improvements  and  used  water  to  reclaim  his  home- 
stead should  be  protected  from  the  encroachments 
of  later  comers ;  but  it  is  equally  unjust  to  allow 
him  in  seasons  of  extraordinary  drouth  to  use 
water  lavishly  while  his  neighbors'  crops  and  or- 
chards and  trees  are  dying. 

A  further  modification  of  the  general  practice  of 
the  arid  region  was  contained  in  the  law  of  1880. 
Section  8  of  that  law  provided  that 

a  right  to  the  use  of  water  may  be  measured  by  fractional 
parts  of  the  whole  supply,  or  by  fractional  parts  with  a  limita- 
tion as  to  periods  of  time  when  used,  or  intended  to  be  used ; 
or  it  may  be  measured  by  cubic  inches,  with  a  limitation  speci- 
fying the  depth,  width,  and  declination  of  the  water  at  the 
point  of  measurement,  and  if  necessary,  with  further  limitations 
as  to  the  periods  of  time  when  used,  or  intended  to  be  used. 

Some  of  the  certificates  on  record  in  Morgan 
County  represent  rights  to  water  for  a  given  acre- 
age, some  to  portions  of  the  streams,  and  still 
others  to  the  whole  of  some  stream  for  a  specified 
portion  of  the  time.  The  courts  have  followed  the 
same  system  in  rendering  decrees  for  water  rights. 
In  the  case  of  Center  Creek  Irrigation  Co.  v. 
Thomas,  in  Wasatch  County,  the  court  held  that 
Thomas  had  a  right  to  "  a  stream  of  water  flowing 
100  cubic  feet  per  minute  for  forty-eight  hours 
every  twenty  days."  In  the  adjudication  of  the 
rights  to  the  lower  Provo  River  the  court  divided 
229 


IRRIGATION    INSTITUTIONS 

the  stream  into  parts,  giving  the  various  canals 
fixed  portions  of  the  stream,  the  portions  varying 
at  different  stages  of  the  river.  In  adjudicating 
rights  to  water  from  Jordan  River,  the  court  decreed 
to  some  ditches  definite  volumes,  flowing  constantly, 
and  to  others  portions  of  what  is  left  after  those 
having  rights  to  fixed  volumes  have  been  supplied. 
The  granting  of  rights  to  a  continuous  flow  of 
a  fixed  volume  of  water  from  streams  and  canals 
has  been  one  of  the  most  fruitful  sources  of  trouble 
in  the  irrigated  West.  An  early  settler  uses  a 
large  quantity  of  water  during  flood  time,  but  this 
is  only  for  a  brief  period.  During  the  remainder 
of  the  season  only  a  small  fraction  of  this  volume 
is  required.  After  others  have  come  and  have 
used  water  from  the  same  source,  trouble  arises 
and  an  adjudication  takes  place.  The  first  settler 
shows  that  his  ditch  carried  a  certain  volume  and 
that  he  had  used  that  much  water,  and  he  receives 
a  decree  for  that  volume,  flowing  continuously. 
Years  after,  more  enterprising  or  more  industrious 
farmers  come  and  begin  -a  better  system  of  farm- 
ing, using  water  later  in  the  season,  without  inter- 
ference with  the  use  of  the  early  settler,  for  he 
has  never  used  water  at  that  time  of  the  year. 
This  may  go  on  for  years  before  the  early  appro- 
priator  awakes  to  the  fact  that  he  has  been  de- 
creed a  right  to  that  water  and  that  he  can  enforce 
that  right  against  those  who  are  making  such  profit 
from  its  use.  He  therefore  changes  his  style  of 
farming,  or  sells  this  surplus,  which  he  has  never 
230 


IRRIGATION   IN   UTAH 

used  and  to  which  he  has  no  moral  right,  to  reclaim 
new  lands,  or  forces  those  who  have  used  the  water 
for  years  to  pay  him  tribute.  The  Utah  practice 
is  much  better.  The  settler  who  has  used  water 
only  during  flood  season  is  given  a  decree  for  water 
from  April  i  to  July  i,  or  about  that  period,  and 
those  who  have  later  made  use  of  the  water  during 
the  whole  season  are  given  decrees  to  that  effect 
and  are  safe  from  any  enlarged  use  under  the  early 
right,  or  any  blackmail  by  its  holder.  The  follow- 
ing table,  giving  the  result  of  an  early  determina- 
tion of  the  rights  to  water  from  Big  Cottonwood 
Creek,  shows  the  workings  of  this  system :  — 


DIVISION  OF  THE  WATER  OF  BIG  COTTONWOOD  CREEK1 


NAME  OF  DITCH 

NUMBER  OF  PARTS 

January  i  to 
July  i 

July  i  to 
January  i 

Butler  Ditch    

0-5 
4-5 
10.5 
12.6 

3-5 

.6 
5.6 
19.6 

2.6 

0.2 
2.1 
10.2 

12.9 

3-8 
.6 
6.1 
21.3 

2.8 

Brown  &  Sanford  Ditch     
Upper  Canal  

Tanner  Ditch       

Green  Ditch         .                              .     . 

Farr  &  Harper  Ditch     

Big  Ditch    

Hill  Ditch  

Total        

60.0 

60.0 

1  United  States  Department  of  Agriculture,  Office  of  Experiment 
Stations,  Bulletin  86,  p.  198. 

231 


IRRIGATION   INSTITUTIONS 

It  will  be  seen  that  the  first  two  ditches  receive 
larger  portions  of  the  stream  during  the  first  half 
of  the  year  than  during  the  latter  half,  while  the 
last  three  receive  larger  portions  during  the  latter 
half. 

The  two  features  just  described  —  the  divisions 
of  rights  into  classes,  and  the  granting  of  rights  to 
parts  of  the  supply  or  for  limited  periods  —  are  the 
chief  points  of  difference  between  the  Utah  law 
and  that  of  the  other  arid  States.  In  both  these 
provisions  Utah  is  in  advance  of  her  sister  States. 

Controversies  over  Water  Rights 

Public  records  and  court  proceedings  give  no 
index  to  the  controversies  which  have  arisen  over 
water  rights  in  Utah.  Until  the  last  few  years 
such  matters  have  usually  been  settled  by  agree- 
ment, with  the  church  authorities  as  arbiters,  and 
this  method  is  still  employed  to  a  large  extent. 
Even  where  appeal  to  the  courts  is  made,  it  is 
often  for  the  purpose  of  giving  the  force  of  a  court 
decree  to  an  agreement  reached  through  the  influ- 
ence of  the  church.  As  a  result  of  this  practice, 
the  impossible  decrees,  which  are  so  common  in 
other  States,  are  rare  in  Utah.  The  decrees  on  the 
Jordan  River,  except  in  a  few  minor  details,  merely 
give  judicial  sanction  to  the  practice  of  twenty 
years  in  dividing  the  waters  of  that  stream.  The 
decree  settling  rights  on  the  lower  Provo  River  was 
only  a  slight  modification  of  an  agreement  drawn 
232 


IRRIGATION   IN   UTAH 

up  by  the  parties  using  the  water.  The  same  thing 
is  true  of  other  decrees  throughout  the  State.  The 
waters  of  American  Fork  River  are  still  divided  in 
accordance  with  a  decision  of  a  church  court  —  the 
high  council  of  Utah  stake  of  Zion  —  made  in  1879. 

Another  method  of  settling  the  rights  to  a  stream 
which  is  peculiar  to  Utah  is  known  as  the  incor- 
poration of  the  stream.  All  parties  having  used 
water  from  the  stream  come  to  an  agreement  as  to 
their  rights,  usually  on  an  acreage  basis ;  then  form 
a  corporation,  and  issue  to  each  farmer  or  to  each 
ditch  company  stock  in  proportion  to  their  rights. 
The  stream  is  then  controlled  by  the  water  master, 
who  is  elected  by  the  members  of  the  corporation. 

The  right  of  such  a  corporation  to  control  a 
stream  will,  of  course,  depend  upon  bringing  into 
the  organization  all  parties  having  rights  to  the 
stream,  and  is  practicable  only  on  the  smaller 
streams. 

Canal  Organization  and  Management 

With  one  or  two  exceptions,  the  canals  of  Utah 
are  cooperative,  and  the  large  majority  of  canal 
companies  are  organized  under  the  general  incor- 
poration laws  of  the  State.  This  has  come  about 
as  the  result  of  long  experience  and  unsuccessful 
experiment  in  other  forms  of  organization.  In  Salt 
Lake  County,  which  is  the  centre  from  which  the 
people  of  Utah  have  gone  out  to  colonize  their  own 
State  and  the  neighboring  states,  every  form  of  or- 
ganization has  been  undertaken,  only  to  be  aban- 
233 


IRRIGATION    INSTITUTIONS 

doned  for  the  corporation  formed  of  those  using 
the  water. 

In  1854  an(i  m  J862  stock  companies  to  build 
canals  and  sell  water  were  chartered  by  the  Terri- 
torial legislature,  but  neither  company  progressed 
far  enough  to  do  any  construction  work. 

An  irrigation  district  law  was  passed  in  1865. 
This  law  provided  for  the  organization  of  districts 
for  the  construction  of  irrigation  works,  and  for 
the  levying  of  taxes  to  cover  the  cost  of  construc- 
tion. It  was  made  optional  with  the  organizers 
whether  the  tax  should  be  upon  all  taxable  prop- 
erty of  the  district  or  only  upon  the  lands  to  be 
benefited.  The  law  made  no  provision  for  issuing 
bonds  or  borrowing  money,  and  therefore  a  district 
had  no  advantages  over  an  ordinary  incorporation 
of  those  interested,  except  that  a  few  people  could 
be  forced  into  the  district  organization  against 
their  wills,  since  a  two-thirds  vote  in  favor  of  the 
organization  of  the  district  and  of  the  tax  made 
the  tax  a  law  in  the  district.  At  one  time  or  an- 
other practically  all  the  irrigable  land  in  Salt  Lake 
County  has  been  included  in  irrigation  districts,  but 
all  have  been  abandoned.  A  number  of  districts 
have  been  organized  in  other  parts  of  the  State,  a 
few  of  which  have  survived.  Where  this  is  true 
the  district  canals  are  managed  in  the  same  way  as 
the  corporation  canals.  The  district  law  has  been 
repealed,  having  had  no  appreciable  results. 

County  construction  was  also  tried  in  Salt  Lake 
County,  but  produced  little  result.  Public  money 
234 


IRRIGATION   IN   UTAH 

was  spent  on  most  of  the  large  canals  from  Jordan 
River,  but  after  a  few  years  this  policy  was  aban- 
doned, and  the  works  which  had  been  begun 
were  turned  over  to  the  canal  companies,  which 
completed  them  and  now  own  them. 

The  farmers  in  Utah  have  not,  as  a  rule,  favored 
the  organization  of  stock  companies  for  the  con- 
struction of  ditches.  Usually  they  club  together, 
furnish  the  money  and  labor  needed  to  build  the 
ditch,  and  divide  the  water  it  carries  into  shares 
which  agree  with  the  amount  of  work  or  money 
supplied  by  each  shareholder.  Even  where  they 
are  organized  as  stock  companies,  and  stock  is  sold 
to  provide  money  or  pay  for  work  done  on  the 
canal,  the  ditch  companies  are  not  managed  as 
are  corporations  organized  for  other  purposes. 
Instead  of  charging  for  the  water  furnished  and 
applying  the  rentals  received  to  pay  the  mainte- 
nance charges  and  dividends  on  the  stock,  no 
charge  whatever  is  made  for  water.  The  stock 
entitles  its  owner  to  a  portion  of  the  water  in  the 
canal,  which  can  be  used  on  any  land  which  can  be 
reached  by  the  canal,  and  may  be  sold  or  rented  if 
the  owner  does  not  need  it.  There  are  no  restric- 
tions as  to  the  area  upon  which  this  water  may  be 
used,  its  owner  using  his  judgment  in  that  matter. 
The  expenses  of  management  and  maintenance  of 
the  canal  are  met  by  assessments  on  the  stock, 
most  of  which  are  paid  in  work.  A  law  of  the 
State  allows  these  corporations  to  sell  at  auction 
the  stock  on  which  the  assessments  are  not  paid, 
235 


IRRIGATION   INSTITUTIONS 

and  provides  for  the  buying  in  of  stock  when  the 
bids  are  not  high  enough  to  pay  the  amount  of  the 
delinquency. 

Under  this  plan,  shares  of  stock  in  a  ditch  are 
looked  upon  and  treated  as  shares  in  the  water 
which  fills  the  ditch.  The  financial  results  are 
sometimes  perplexing  to  stockholders,  as  one  ex- 
ample will  show.  The  farmers  who  began  the  D. 
&  W.  canal  were  not  able  to  complete  it.  To  raise 
money  for  this  purpose  they  sold  some  stock  to 
a  banker  not  familiar  with  irrigation  methods. 
When  the  canal  was  completed,  the  banker  was 
assessed  on  his  stock  to  help  pay  running  expenses. 
He  received  no  dividends  because  there  was  no 
charge  for  water,  and  hence  no  revenue  from  the 
canal.  His  stock  entitled  him  to  a  part  of  the 
water  of  the  canal,  but  he  had  no  land  on  which  to 
use  it.  He  could  not  sell  it  to  the  farmers,  be- 
cause they  were  able  to  take  his  share  along  with 
their  own.  For  several  years  he  was  assessed  on 
his  stock  to  help  pay  the  running  expenses  of  the 
ditch,  from  which  he  derived  no  revenue  whatever. 
This  could  not  continue  forever,  and  the  invest- 
ment was  too  large  to  be  sacrificed.  The  stock  at 
that  time,  however,  had  no  selling  value,  and  un- 
less some  change  could  be  made  in  the  method  of 
operating  the  ditch,  the  investment  would  prove  a 
total  loss.  The  method  taken  to  improve  the  situ- 
ation was  as  ingenious  as  it  was  successful.  He 
loaned  his  stock  to  one  of  the  farmers  under  the 
ditch  for  a  single  year.  This  farmer  was  the  envy 
236 


IRRIGATION    IN   UTAH 

of  all  his  neighbors ;  he  had  water  whenever  he 
needed  it  in  unlimited  abundance.  The  next  year 
other  farmers  wished  to  share  in  their  neighbor's 
opulence.  When  the  banker  refused  to  lend  his 
stock,  they  agreed  to  rent  it.  In  a  few  years 
it  was  renting  for  enough  to  pay  interest,  and 
subsequently  was  sold  for  enough  to  repay  the 
investment. 

A  number  of  canals  are  controlled  by  municipal 
corporations.  In  such  cases  they  are  under  the 
management  of  the  town  councils,  which  levy 
assessments  to  cover  the  expenses  of  maintenance 
and  management  and  appoint  water  masters  to 
distribute  the  water.  In  some  such  cases  the 
water  rights  are  attached  to  the  land ;  in  others 
individuals  own  rights,  and  can  sell  or  rent  them 
just  as  under  corporate  canals. 

Water  is  distributed  from  canals  by  the  super- 
intendent or  water  master  elected  by  the  stock- 
holders for  that  purpose.  Under  canals  owned  by 
stock  companies,  each  share  represents  a  definite 
portion  of  whatever  water  the  canal  supplies.  Each 
lateral  from  such  a  canal  carries  the  water  belong- 
ing to  several  stockholders,  and  the  quantity  of 
water  turned  into  each  lateral  depends  on  the 
number  of  shares  which  are  represented  in  that 
lateral.  In  other  parts  of  the  State  the  canal 
superintendents  divide  the  water  into  "irrigating 
streams  "  which  carry  the  volume  which  one  man 
can  conveniently  use,  and  vary  in  volume  accord- 
ing to  the  judgment  of  the  superintendent.  (See 
237 


IRRIGATION   INSTITUTIONS 

p.  in.)  Where  rights  are  measured  by  the  area 
irrigated,  the  volume  turned  into  each  lateral  is 
governed  by  the  number  of  acres  to  be  served  by 
the  laterals. 

After  water  is  turned  into  a  lateral  it  passes 
from  the  control  of  the  canal  officials.  Those 
irrigating  from  a  lateral  elect  a  water  master  who 
distributes  the  supply  according  to  a  schedule  made 
out  by  the  water  users.  If  the  stream  is  no  larger 
than  can  be  used  to  advantage  by  one  man  it  is 
used  in  turn  by  the  farmers,  the  length  of  time 
which  each  uses  the  stream  depending  on  his  inter- 
est in  the  ditch.  If  more  than  one  "irrigating 
stream  "  is  carried  by  a  lateral,  the  water  is  divided 
into  streams,  which  are  used  in  turn  as  just  de- 
scribed. At  the  beginning  of  the  season  a  schedule 
is  made  out  showing  just  when  each  user  is  entitled 
to  take  the  stream,  and  how  long  he  may  use  it. 
As  a  rule  it  is  not  necessary  for  the  water  master 
to  attend  to  the  distribution,  each  farmer  taking 
the  water  when  his  turn  comes,  and  keeping  it 
until  the  one  next  entitled  to  it  comes  and  takes  it. 

In  times  of  extreme  drouth  the  same  system  of 
rotation  is  used  in  distributing  water  from  the 
larger  canals  to  the  laterals.  When  the  volume  of 
water  to  which  each  lateral  is  entitled  is  so  small 
as  to  be  of  little  use,  several  laterals  enter  into  an 
agreement,  and  take  the  water  to  which  all  are 
entitled  in  turn.  This  gives  the  water  to  each 
farmer  less  often,  but  gives  him  a  good  working 
stream.  This  system  of  rotation  might,  in  dry 

238 


IRRIGATION   IN   UTAH 

seasons,  be  adopted  with  advantage  in  dividing  the 
water  from  a  river  among  canals.  At  times  dur- 
ing the  season  of  1901  the  large  canals  from 
Jordan  River,  each  of  which  waters  several  thou- 
sand acres,  were  receiving  but  sixteen  cubic  feet 
per  second  each.  This  would  hardly  flow  to  the 
end  of  a  long  canal  if  none  was  used,  so  that  the 
whole  flow  of  the  river  was  practically  wasted.  If 
the  whole  supply  of  eighty  cubic  feet  per  second 
which  went  to  the  five  large  canals  could  have  been 
taken  by  each  canal  in  turn,  a  much  better  use  of 
the  water  could  have  been  made. 


The  State  Engineer 

The  office  of  State  engineer  was  created  in 
1897,  but  the  powers  and  funds  of  the  office  were 
so  limited  that  the  engineer  could  do  little.  He 
was  required  to  examine  reservoir  sites  for  the 
State  board  of  land  commissioners,  and  keep  a 
record  of  such  stream  measurements  and  other 
facts  of  interest  as  came  to  his  notice.  His  ap- 
proval was  necessary  for  all  dams  over  ten  feet 
high  constructed  in  the  State. 

An  attempt  was  made  in  1901  to  adopt  a  com- 
prehensive system  of  water  laws  for  the  State. 
This  attempt  failed,  but  a  part  of  the  law  pro- 
posed was  enacted.  This  enlarged  the  duties 
of  the  State  engineer,  but  the  appropriation 
necessary  to  the  carrying  out  of  the  new  duties 
was  not  made,  leaving  the  engineer  with  little 

239 


IRRIGATION   INSTITUTIONS 

power.  The  law  requires  the  engineer  to  measure 
the  streams  of  the  State,  beginning  on  those  most 
used  for  irrigation.  He  is  to  give  notice  of  the 
time  when  measurements  are  to  be  made  on  any 
stream,  and  at  the  appointed  time  measure  the 
flow  of  the  stream,  the  diversions  therefrom,  the 
area  irrigated,  and  the  area  capable  of  irrigation. 
He  is  also  to  make  maps  showing  the  streams  and 
the  lands  irrigated  and  capable  of  irrigation  from 
them,  copies  of  which  are  to  be  filed  with  the 
county  recorders  of  the  counties  in  which  the 
streams  are  situated.  The  law  as  proposed  con- 
tained a  provision  for  the  adjudication  of  all  rights 
to  the  streams  of  the  State,  and  these  measurements 
were  to  be  the  basis  for  the  settlement  of  rights. 
As  the  provision  for  adjudication  was  not  passed, 
and  no  appropriation  was  made  to  cover  the  ex- 
pense of  the  measurements,  this  part  of  the  law 
has  been  inoperative.  The  same  law  provided 
for  the  division  of  the  counties  of  the  State  into 
water  districts  and  for  the  appointment  by  the 
county  commissioners  of  water  commissioners  to 
distribute  the  waters  of  the  county.  The  State 
engineer  is  given  "  general  supervision  "  of  these 
water  commissioners,  and  is  required  to  instruct 
them  as  to  the  manner  in  which  measurements 
of  water  shall  be  made.  The  water  commissioners 
are  required  to  report  to  the  engineer  as  often  as 
the  engineer  deems  necessary,  and  their  reports 
are  to  contain  such  information  as  he  may  require. 
The  relation  of  the  engineer  to  the  water  commis- 
240 


IRRIGATION   IN   UTAH 

sioners  is  rather  loosely  defined,  but  the  present 
State  engineer  has  recognized  the  necessity  for 
central  control  and  has  exercised  it  to  the  great 
benefit  of  irrigation  in  a  number  of  instances. 

Future  Development 

With  the  exception  of  Bear  River,  the  late  water- 
supply  of  the  Salt  Lake  basin  has  been  used 
in  irrigation  for  many  years.  In  fact,  there  are 
few  streams  on  which  there  is  not  every  year  a 
scarcity  and  an  injury  of  some  fields  by  drouth. 
Further  expansion  is,  therefore,  restricted  to  stor- 
age, the  development  of  underground  waters,  the 
drainage  of  lands  which  have  been  flooded  by  irri- 
gation above,  and  a  better  distribution  and  use  of 
water  by  farmers. 

The  greatest  extension  of  irrigation  is  to  come 
from  storage.  This,  on  a  number  of  rivers,  has 
already  assumed  great  economic  importance.  The 
largest  and  most  valuable  reservoir  is  Utah  Lake, 
which  is  used  to  regulate  the  flow  of  the  Jordan 
River.  Improvements  are  now  being  made  at  its 
outlet  which  will  provide  for  more  perfect  control 
in  the  future.  It  will  also  make  it  possible  to  draw 
off  more  water  in  times  of  scarcity  and  thus  mate- 
rially increase  the  available  water-supply  of  the 
ditches  around  Salt  Lake  City.  The  completion 
of  these  improvements  will  permit  all  the  surplus 
water  of  the  streams  flowing  into  this  lake  to  be 
stored,  at  least  all  that  empties  into  the  lake  in 
R  241 


IRRIGATION    INSTITUTIONS 

years  of  average  snowfall ;  and  if  the  extension  of 
the  irrigated  territory  along  these  tributaries  con- 
tinues, there  will  not  be  enough  water  come  down 
to  fill  the  lake.  The  outlook  is,  therefore,  that  the 
canals  already  built  in  the  valley  of  the  Jordan 
cover  all  the  land  they  can  be  made  to  serve. 
The  extension  of  the  irrigated  territory  in  this 
part  of  the  State  depends  more  on  effective  dis- 
tribution of  the  water-supply  and  stopping  of 
waste  from  seepage  than  by  increasing  the  water- 
supply.  On  the  Sevier  in  the  south  and  on  the 
Weber,  Ogden,  Bear,  and  Logan  rivers  in  the 
north,  storage  has  great  possibilities.  Much  water 
is  lost  from  each  of  these  streams  during  the  early 
part  of  the  year,  which  is  needed  later  on.  The 
profits  of  crops  requiring  late  water  are  so  much 
greater  than  from  those  having  but  a  short  grow- 
ing season  that  it  is  probable  that  little  new  land 
will  be  reclaimed  by  the  use  of  this  stored  water. 
Future  development  will  be  along  the  line  of  a 
more  intensive  culture. 

The  soil  and  climate  of  all  these  valleys  is  well 
suited  to  market  gardening  and  fruit  growing,  and 
these  have  become  important  industries.  Two 
beet-sugar  factories  are  already  in  successful 
operation  in  Utah,  and  Ogden  has  become  a 
great  centre  for  the  canning  of  fruits  and  vegeta- 
bles. The  fluctuating  water-supply  of  unregulated 
streams  is  not  a  safe  reliance  in  the  growing  of 
high-priced  products.  The  few  reservoirs  which 
have  been  built  have  proven  exceedingly  profit- 
242 


IRRIGATION   IN   UTAH 

able  to  their  owners,  and  of  greater  value  to  the 
public.  The  East  Canyon  Creek  reservoir,  which 
cost  $85,000,  paid  its  owners  $50,000  in  1901.  In 
addition  it  lifted  a  load  of  anxiety  and  dread  from 
irrigators,  who  now  know  that  the  crops  planted 
will  be  brought  to  maturity,  —  something  they 
could  never  be  sure  of  when  they  relied  entirely  on 
the  stream. 

In  addition  to  this  it  is  estimated  that  this  reser- 
voir has  not  only  permitted  the  growing  of  higher- 
priced  products,  but  has  added  50  per  cent  to  the 
productive  capacity  of  the  land. 

To  those  not  familiar  with  Utah,  it  may  seem  an 
absurd  statement  to  say  that  outside  of  the  valleys 
of  Grand  and  Green  rivers  drainage  stands  next  to 
reservoirs  as  a  means  of  increasing  the  cultivated 
area.  The  ditches  of  Jordan  and  Logan  valleys 
lose  from  20  to  50  per  cent  of  their  water-supply 
by  seepage.  The  high-line  ditches  run  through 
a  coarse,  gravelly  soil  along  the  steep  slopes  at 
the  base  of  the  mountains,  where  all  the  condi- 
tions favor  an  excessive  loss  through  their  sides 
and  bottom.  This  water  finds  its  way  readily  to 
the  low-lying  lands  of  the  valley,  where  it  creates 
bogs  and  marshes.  To  the  excess  of  water  is 
added  an  excess  of  alkali  washed  out  of  the  irri- 
gated lands  above.  Both  can  be  removed  by 
drainage ;  and  when  this  is  done,  some  of  the  most 
valuable  lands  in  the  State,  both  as  regards  their 
fertility  and  location,  will  be  again  restored  to 
cultivation, 


IRRIGATION   INSTITUTIONS 

The  general  construction  of  reservoirs  is  being 
delayed  by  the  absence  of  adequate  public  control 
over  streams.  Many  of  these  works  must  be 
built  up  in  the  mountains  and  the  water  must  be 
carried  down  in  the  natural  streams  to  the  places  of 
use.  To  do  this,  it  will  have  to  pass  the  head-gates 
of  ditches  having  no  interest  in  the  stored  water, 
but  whose  owners  will  be  disposed  to  take  it  un- 
less the  head-gates  are  regulated  by  some  public 
and  disinterested  authority.  The  water  of  East 
Canyon  Creek  reservoir,  before  referred  to,  has  to 
be  turned  into  East  Canyon  Creek  and  carried  down 
this  stream  into  the  Weber,  and  then  the  stored 
water  separated  from  the  natural  flow  of  this  river. 
Unless  the  head-gates  of  intermediate  ditches  can 
be  closed  while  the  reservoir  is  being  emptied, 
they  will  take  the  entire  supply  and  none  will 
reach  the  canal  of  its  owners.  Last  year  the 
State  engineer  was  called  in  to  act  as  an  arbiter 
to  arrange  for  the  closing  of  these  gates,  but  it  was 
entirely  optional  with  their  owners  as  to  whether 
or  not  they  would  follow  his  recommendations. 
They  did  so,  but  the  neighborly  feeling  which  this 
evidenced  cannot  always  be  relied  upon,  and  it  is 
unfair  to  a  public  official  and  a  menace  to  devel- 
opment, to  leave  so  important  a  matter  in  this 
condition. 

One  of  the  largest  and  costliest  canal  systems 
in  the  arid  West  is  in  northern  Utah.  It  diverts 
the  water  of  Bear  River  on  to  the  elevated  plain 
north  of  Salt  Lake.  It  is  the  only  irrigation  system 

244 


IRRIGATION   IN   UTAH 

m  Utah  built  by  outside  capital  and  the  only  one 
where  the  farmers  have  no  ownership  in  the  canal. 
From  a  financial  standpoint  it  has  thus  far  been 
an  unfortunate  failure ;  unfortunate,  because  it  has 
been  worth  far  more  to  the  State  than  it  cost, 
and  its  builders  should  have  been  rewarded  for 
their  energy  and  enterprise.  The  losses  to  its 
builders  are  another  illustration  of  misfit  land 
laws.  The  land  it  was  to  irrigate  was  filed  upon 
in  part  by  speculators  and  in  part  by  farmers  who 
were  prejudiced  against  outside  investments  and 
opposed  to  contract  water  rights.  These  farmers 
refused  to  become  customers  of  the  canal,  and 
lack  of  income  caused  its  sale  for  less  than  one- 
tenth  of  what  it  cost.  Recently  it  has  passed 
into  the  hands  of  local  owners  who  are  members 
of  the  Mormon  church,  and  who,  from  their  under- 
standing of  local  conditions  and  acquaintance  with 
Utah  farmers,  will  doubtless  secure  the  rapid  de- 
velopment of  the  country  it  is  to  serve. 

In  the  eastern  part  of  the  State  there  is  more 
water  than  can  be  used.  The  Grand  and  Green 
are  large  rivers,  but  they  traverse  a  mountainous 
country  where  there  is  little  agricultural  land  and 
where  the  obstacles  to  diversion  are  serious.  To 
irrigate  the  valleys  along  these  rivers  will  require 
large  and  costly  works  which  will  hardly  be  built 
by  private  enterprise.  These  streams  furnish  an 
appropriate  field  for  the  expenditure  of  public 
funds,  and  doubtless  some  of  the  works  to  be  built 
under  the  laws  passed  by  the  last  Congress  will  be 
*4S 


IRRIGATION   INSTITUTIONS 

located  here.  In  the  western  part  of  the  State, 
notably  along  the  Sevier,  there  are  large  tracts 
of  level  land  exceedingly  fertile  and  having  an 
attractive  climate.  For  these  there  is  no  water 
unless  it  can  be  secured  from  underground  sources 
and  from  the  storage  of  the  comparatively  small 
volume  of  water  not  now  utilized  by  irrigators. 


246 


CHAPTER  XI 

IRRIGATION  IN  WYOMING 

RECENTLY  two  men  were  talking  about  the  im- 
portance of  irrigation  in  the  different  arid  States. 
One  said  that  Colorado  and  California  were  the 
leading  States,  and  that  in  these  States  about 
every  question  had  been  litigated  and  settled,  so 
that  irrigators  knew  what  they  were  doing.  The 
other  asked  why  he  did  not  include  Wyoming, 
and  was  told  that  irrigation  had  not  made  much 
progress  in  Wyoming,  that  an  investigation  had 
shown  that  only  two  water-right  cases  had  ever 
been  decided  by  the  State  supreme  court.  In  the 
mind  of  the  speaker,  litigation  went  with  irrigation, 
as  fever  with  malaria,  and  a  State  with  only  two 
lawsuits  was  not  worth  notice. 

Nevertheless,  over  nine  thousand  irrigators  are 
taking  water  from  over  six  hundred  streams  with 
a  certainty  as  to  their  rights  and  an  absence  of 
friction  in  the  protection  of  these  rights,  which  is 
in  such  striking  contrast  with  the  situation  in  sur- 
rounding States  as  to  make  the  methods  by  which 
this  result  was  accomplished  of  unusual  interest. 

The  first  ditches  built  in  Wyoming  were  along 
the  Overland  Trail  and  in  the  vicinity  of  the 
military  posts.  The  oldest  of  which  there  is  any 

247 


IRRIGATION   INSTITUTIONS 

official  record  was  built  in  1857,  and  several  were 
constructed  in  the  early  sixties.  The  first  irriga- 
tion law  was  passed  in  1875.  It  gave  parties 
owning  or  claiming  lands  along  streams  the  right 
to  take  water  for  irrigation  and  provided  that  in 
times  of  scarcity  the  county  commissioners  should 
appoint  three  water  commissioners  to  divide  the 
supply  among  those  having  rights  therein.  No 
provision  was  made  for  recording  claims,  nor  was 
priority  of  use  recognized  as  giving  a  better  right. 
In  the  division  of  water  all  users  stood  on  an  equal 
footing.  The  rights  of  the  last  ditch-builder  were 
not  inferior  to  those  of  the  first.  The  three  water 
commissioners  were  authorized  to  arrange  for  rota- 
tion in  use,  and  to  give  to  each  user  all  the  water 
he  needed  part  of  the  time,  rather  than  less  than 
he  needed  all  of  the  time.  In  many  respects  it 
was  an  admirable  beginning,  but  it  had  one  weak- 
ness, which  was  fatal.  It  did  not  fix  the  salary 
of  the  water  commissioners  or  make  provision 
for  paying  them  anything.  The  office,  therefore, 
was  not  a  desirable  one  and  soon  fell  into  disre- 
pute. In  its  influence  on  future  development  the 
law  was  important  because  of  its  protection  of 
riparian  rights,  and  because  it  made  the  ownership 
of  land  rather  than  the  construction  of  ditches  the 
foundation  of  the  water  right. 

For  eleven  years  there  was  no  further  irrigation 

legislation,  but  in  1886  the  State  legislature  passed 

what  was  practically  a  copy  of  the  Colorado  law  of 

1881.     This  law  made  radical  changes  in  methods, 

248 


IRRIGATION   IN   WYOMING 

and  an  equally  radical  departure  from  the  original 
Wyoming  law.  Under  the  law  of  1875  the  owner- 
ship or  control  of  land  was  the  foundation  of  a 
right  to  water.  Under  the  law  of  1886  the  con- 
struction of  ditches  was  made  the  foundation  of 
this  right,  although  there  was  a  requirement,  not 
found  in  the  Colorado  law,  that  the  acreage  of  land 
irrigated  should  be  made  a  part  of  the  proof  of 
appropriation.  The  method  of  adjudication  was 
the  same  as  in  Colorado,  and  the  doctrine  of  pri- 
ority of  appropriation  giving  a  better  right  was 
also  adopted.  The  law  also  provided  for  recording 
the  claims  of  existing  ditches,  and  for  a  record  of 
intended  appropriations.  The  claims  for  existing 
ditches  were  to  be  filed  with  the  clerk  of  the  dis- 
trict court,  and  those  for  future  appropriation,  with 
the  county  clerk.  A  further  record  of  existing 
works  was  provided  for  by  requiring  the  county 
surveyor  of  each  county  to  measure  all  ditches  in 
his  territory  and  issue  certificates  for  their  capacity, 
which  were  to  be  recorded. 

The  law  soon  became  unpopular.  The  claims 
made  were  indefinite  and  usually  for  extravagant 
volumes ;  the  surveyors'  charges  were  excessive, 
and  oftentimes  their  measurements  were  fraudulent, 
certificates  being  made  out  without  even  visiting 
the  ditches.  After  all  the  fees  had  been  paid  users 
had  no  protection  in  their  rights.  No  practical 
results  were  reached.  Before  the  law  was  passed 
the  three  water  commissioners  provided  for  in  the 
original  act  could  divide  any  stream  in  times  of 

249 


IRRIGATION   INSTITUTIONS 

scarcity,  but  after  its  passage  there  could  be  no 
such  public  division  of  water  until  rights  had  been 
adjudicated  by  the  district  court.  The  admirable 
provisions  taken  from  the  Colorado  law,  for  the 
employment  of  commissioners  to  divide  streams 
in  times  of  scarcity,  could  not  be  put  into  operation 
until  the  priorities  of  appropriators  had  been  estab- 
lished. 

Two  years  later  the  law  was  modified  and  greatly 
improved.  The  certificates  of  county  surveyors 
were  abolished,  the  office  of  Territorial  engineer 
was  created,  limitations  were  placed  on  the  specu- 
lative claims  of  ditch-builders,  and  the  charging  of 
a  bonus  or  royalty  for  water  forbidden.  Never- 
theless, the  law  remained  in  disfavor.  In  the  five 
years  of  its  existence,  only  six  streams  were  adju- 
dicated. The  results  of  these  adjudications  were 
so  unsatisfactory  that  irrigators  preferred  to  lose 
their  crops  rather  than  to  attempt  to  secure  a  set- 
tlement of  rights  by  this  method.  The  first  decree 
under  the  Territorial  statute  adjudicated  rights  on 
Bear  Creek.  In  this  adjudication  only  six  of  the 
forty-two  recorded  appropriations  were  determined. 
On  another  stream,  485  cubic  feet  of  water  per  sec- 
ond of  time  was  decreed  to  be  appropriated,  although 
the  average  flow  of  the  stream  was  less  than  10 
cubic  feet  per  second.  Apparently  each  appro- 
priator  was  given  all  he  claimed,  regardless  of  the 
actual  duty  of  water,  or  of  the  necessities  of  bene- 
ficial use.  One  appropriator  was  given  4^  cubic 
feet  per  second  for  100  acres.  The  next  appro- 

250 


IRRIGATION   IN   WYOMING 

priator  was  given  3  cubic  feet  per  second  for  100 
acres.  Under  another  ditch  the  same  appropriator 
was  given  2  cubic  feet  per  second  for  30  acres. 
The  first  appropriation  on  the  stream  was  1 2  cubic 
feet  per  second,  which  was  more  than  the  average 
flow,  and  legally  left  nothing  for  the  sixty  other  ap- 
propriators.  In  the  adjudication  of  Horse  Creek, 
one  of  the  six  streams  dealt  with,  6  cubic  feet  per 
second  was  allowed  for  the  irrigation  of  9  acres  of 
land.  The  right  was  to  a  continuous  flow  for  the 
entire  year,  not  omitting  Sundays.  This  would 
cover  the  land  to  a  depth  of  over  450  feet.  In  the 
same  decree  2000  acres  received  only  5  cubic  feet 
per  second.  Such  proceedings  were  prevented 
from  being  farcical  only  by  their  disastrous  effect  on 
the  public  welfare.  In  addition  to  the  unsatisfactory 
outcome,  these  adjudications  had  proven  enormously 
expensive,  both  to  the  State  and  to  irrigators.  Fur- 
thermore, the  law  was  not  a  working  code.  The 
water  districts  created  by  the  legislature  followed 
county  boundaries  rather  than  drainage  lines,  and 
some  streams  were  cut  into  two  or  three  sections. 
There  was  no  single  place  of  record  for  claims  and 
adjudicated  rights  to  water.  The  authority  of  the 
State  engineer  was  nominal,  not  real.  He  had  no 
oversight  of  the  building  of  canals  nor  any  influ- 
ence in  the  adjudication  of  rights.  Five  different 
members  of  the  Territorial  government,  elected  to 
perform  other  duties,  and  with  little  or  no  knowl- 
edge of  irrigation,  had  to  deal  with  water-right 
questions  before  they  reached  his  office.  The 


IRRIGATION    INSTITUTIONS 

result  was  a  chaos  which  all  recognized  should  be 
brought  to  an  end. 

When  Wyoming  became  a  State  these  accumu- 
lated water-right  complications  made  irrigation  one 
of  the  most  important  questions  to  be  considered 
in  the  constitutional  convention.  It  is  fortunate 
that  among  the  members  of  this  body  were  a  num- 
ber of  men  who  were  unusually  well  informed  on  the 
subject,  and  who  sought  not  simply  to  correct  the 
mistakes  of  the  past,  but  to  create  a  system  suited 
to  the  needs  of  the  future.  The  sections  of  the 
constitution  which  dealt  with  irrigation  declared 
broadly  the  doctrine  that  all  natural  streams, 
springs,  lakes,  or  other  collections  of  still  water, 
within  the  borders  of  the  State,  were  the  property 
of  the  State,  and  that  they  should  forever  remain 
under  public  ownership  and  control.  It  provided 
for  a  special  tribunal  to  administer  this  property, 
composed  of  a  State  engineer  and  four  superin- 
tendents of  water  divisions  which  were  bounded 
by  drainage  lines.  To  carry  these  provisions  into 
effect  two  entirely  different  things  had  to  be  done. 
One  was  to  settle  the  accumulated  Territorial 
rights,  the  other  to  provide  a  system  which  would 
prevent  such  accumulation  in  the  future. 

Familiarity  with  the  results  of  court  adjudication 
in  a  number  of  States  had  led  to  the  conviction  that 
this  method  of  establishing  titles  to  water  was 
needlessly  cumbersome  and  expensive.  There 
seemed  to  be  no  reason  why  the  facts  showing  the 
actual  use  of  water  could  not  be  presented  in  a 
252 


IRRIGATION   IN   WYOMING 

much  simpler  manner.  To  prevent  delay  and 
controversies  in  the  future,  it  was  determined  to 
require  all  parties  proposing  to  use  the  public  water- 
supply  to  secure  permits  from  the  State,  and  to 
have  the  conditions  of  these  permits  as  definite  as 
the  regulations  which  govern  filing  on  public  land. 

The  most  urgent  problem  was  the  settlement  of 
the  accumulated  Territorial  rights.  There  were 
over  3000  of  these.  On  many  streams  there  was 
a  shortage  of  water,  and  controversies  of  long 
standing.  In  order  to  facilitate  a  prompt  settle- 
ment of  these  matters  the  law  provided  that  all  of 
the  county  records  should  be  transferred  to  the 
State  engineer's  office,  which  was  thereafter  to  be 
the  office  of  record  for  all  appropriations. 

The  severest  test  of  the  law  came  immediately 
after  its  enactment,  in  the  settlement  of  Territorial 
rights  on  streams  where  irrigators  were  already  at 
war  with  each  other.  On  these  streams  the  board 
of  control  faced  a  water-right  situation  as  perplex- 
ing and  chaotic  as  that  of  California.  In  each 
county  book  after  book  had  been  filled  with  notices 
of  appropriations.  The  fever  of  speculative  filings 
had  run  its  course  and  hundreds  of  claims  had  been 
recorded  by  parties  who  had  done  nothing  more 
than  file  the  statement.  The  name  of  one  indi- 
vidual was  found  in  the  water-right  records  of 
every  county  in  the  State,  although  he  built  only 
one  ditch  and  that  in  the  county  where  he  lived. 
The  sifting  of  the  chaff  from  the  wheat  in  these 
extravagant  claims  was  rendered  more  difficult  be- 
253 


IRRIGATION    INSTITUTIONS 

cause  the  parties  making  them  objected  to  the 
rigid  supervision  which  the  State  law  inaugurated. 
They  insisted  that  the  rights  they  had  acquired 
were  vested,  and  that  it  was  not  within  the  power 
of  a  State  tribunal  to  interfere  with  the  exercise  of 
privileges  granted  by  the  Territorial  laws.  An 
effort  was  made  to  discredit  the  board  before  its 
labors  began,  by  an  appeal  to  the  prejudice  and 
selfishness  of  the  older  appropriators. 

The  board  began  its  struggle  with  the  Territorial 
chaos  on  a  river  where  controversies  were  acute 
and  appropriators  were  at  war.  For  several  years 
there  had  been  a  shortage  during  the  latter  part  of 
the  irrigation  season.  With  all  the  water  in  use, 
it  was  impossible  to  give  any  appropriator  more 
than  enough  to  meet  his  necessities  without  rob- 
bing later  appropriators.  To  recognize  any  right 
to  water  in  excess  of  actual  use  meant  inevitably 
an  injustice  to  some  other  appropriator.  Because 
of  its  results  and  because  of  a  belief  in  the  princi- 
ples they  were  supporting,  the  board  refused  to 
consider  claims  to  water  not  based  on  use  as  hav- 
ing any  validity.  In  order  that  irrigators  might 
understand  this,  it  adopted  and  published  the  fol- 
lowing as  the  principles  which  would  govern  its 
decisions  in  all  water-right  determinations :. — 

ist.  That  to  constitute  a  valid  appropriation  the  water 
must  have  been  applied  to  a  beneficial  use,  and  in  the  case  of 
appropriation  for  irrigation  the  water  must  have  actually  been 
applied  to  the  land. 

2nd.  That  the  amount  of  the  appropriation  is  governed 

254 


IRRIGATION    IN   WYOMING 

by  the  volume  used  and  by  the  requirements  of  this  use.  In 
the  case  of  appropriations  for  irrigation,  by  the  needs  of  the 
land  reclaimed. 

3rd.  Where  reasonable  diligence  is  shown  in  the  con- 
struction of  diverting  works  and  utilizing  water,  the  appro- 
priation dates  from  the  beginning  of  work  on  the  ditch,  the 
survey  to  be  considered  as  a  part  of  such  work.  Where  rea- 
sonable diligence  is  not  shown,  the  appropriation  to  date  from 
the  utilization  of  the  water. 

4th.  Priority  of  appropriation  to  give  priority  of  right 
except  in  the  case  of  appropriations  made  between  1888  and 
1891,  during  which  time  the  law  gave  appropriations  for 
domestic  use  a  preferred  priority. 

5th.  The  present  law  restricts  appropriations  for  irriga- 
tion to  one  cubic  foot  per  second  for  each  seventy  acres 
irrigated.  While  this  does  not  apply  to  lands  reclaimed  be- 
fore its  enactment,  no  appropriation  for  a  larger  amount  will 
be  recognized,  because  in  all  cases  so  far  considered  this 
volume  has  appeared  to  be  ample. 

In  order  to  apply  these  principles  properly,  the 
board  must  know  why  and  where  water  is  being 
used,  and  be  able  to  show  all  those  affected  by  its 
decisions  that  the  information  on  which  they  were 
based  was  accurate  and  reliable.  The  problem  was 
not  simply  to  satisfy  its  members  that  its  decisions 
were  lawful  and  right,  but  to  convince  appropria- 
tors  that  its  policy  was  both  just  and  wise.  This 
required,  first  of  all,  a  careful  examination  of  the 
physical  conditions  along  the  stream.  Each  ditch 
diverting  water  was  surveyed  and  its  capacity 
measured.  The  area  of  the  land  it  irrigated  was 
determined,  the  flow  of  the  river  was  gauged  from 
time  to  time  during  the  season,  and  records  kept 
255 


IRRIGATION    INSTITUTIONS 

of  the  ditches  which  diverted  this  water.  When 
these  field  investigations  were  completed,  maps 
and  tables  were  prepared  which  showed  the  loca- 
tion and  size  of  the  ditches,  the  areas  of  land  irri- 
gated, and  the  measured  flow  of  the  stream. 
Equipped  with  this  information,  the  board  was 
prepared  to  pass  intelligently  on  the  claims  of 
appropriators.  The  preparation  and  submission 
of  their  proofs  was  made  simple  by  use  of  blank 
forms  which  were  in  part  copied  after  the  desert 
land  proofs  used  in  the  United  States  land  offices, 
which  enabled  appropriators  to  state  definitely,  but 
briefly,  the  date  when  the  ditch  was  built,  and  the 
successive  dates  when  the  land  it  watered  was 
irrigated.  Many  were  able  to  prepare  their  proofs 
without  any  advice  or  assistance  and  without  in- 
curring any  expense,  as  the  surveys  of  ditches, 
maps  of  irrigated  land,  and  gauging  of  water-sup- 
ply were  all  paid  for  by  the  State.  Later  on, 
when  the  State  law  was  better  understood,  it  was 
rare  that  these  proofs  contained  either  inaccuracies 
or  misstatements,  but  at  the  outset  some  of  the 
proofs  submitted  were  curiosities.  As  it  was 
known  that  the  amount  of  the  appropriation  would 
be  fixed  by  the  acreage  of  land  which  had  been 
irrigated,  some  of  the  claimants  with  expansive 
ideas  included  in  their  descriptions  lands  which 
were  many  miles  away  from  and  hundreds  of  feet 
above  their  ditches.  Without  the  preliminary  sur- 
vey some  of  these  proofs  might  have  been  ac- 
cepted, but  with  the  official  map  before  it  the 
256 


IRRIGATION   IN   WYOMING 

board  always  noted  the  discrepancies  between  the 
sworn  statement  and  the  actual  situation.  It  re- 
quired tact,  firmness,  and  patience  to  have  these 
attempts  to  secure  excessive  amounts  of  water 
rectified  and  prevent  a  rebellion  against  the  rigid 
adherence  to  facts,  which  was  in  such  striking  con- 
trast to  the  slipshod  methods  that  had  hitherto 
prevailed.  It  was  made  manifest,  however,  that 
the  board  always  stood  ready  to  correct  its  maps 
or  measurements  if  they  were  shown  to  be  in  error, 
but  until  this  was  shown  no  variation  between  them 
and  the  proofs  would  be  overlooked.  A  few  test 
surveys  were  made,  but  the  official  maps  proved  to 
be  correct.  Of  late  years  their  accuracy  is  rarely 
questioned. 

When  the  agreement  between  the  proof  and  the 
survey  was  finally  secured,  a  table  was  made  which 
gave  the  acreage  irrigated  by  each  appropriator 
and  the  amount  of  water  required  under  an  assumed 
minimum  duty  of  one  cubic  foot  per  second  for 
each  70  acres  of  land  reclaimed. 

After  these  proofs  of  appropriation  were  sub- 
mitted, all  interested  parties  were  given  an  oppor- 
tunity to  inspect  them  and  contest  any  statement 
or  claim  believed  to  be  erroneous.  There  was  a 
large  attendance  at  the  first  inspection,  and  a 
general  disposition  to  oppose  the  board's  ruling 
that  the  volume  of  an  appropriation  should  be 
determined  by  the  acres  irrigated  rather  than  by 
what  was  claimed.  But  when  the  water  required 
for  the  land  already  irrigated  was  compared 
s  257 


IRRIGATION    INSTITUTIONS 

with  the  total  flow  of  the  stream,  and  these  with 
the  table  of  recorded  claims,  there  was  a  com- 
plete reversal  of  sentiment.  There  were  in  all 
132  ditches.  If  each  appropriator  should  receive 
what  he  claimed,  the  first  five  would  have  a  right 
to  the  entire  supply  after  midsummer,  and  the 
first  six  or  seven  would  have  a  right  to  the  entire 
supply  at  any  time.  This  would  leave  the  owners 
of  the  126  ditches  dependent  upon  the  generosity 
of  the  favored  few  having  the  prior  rights.  It  was 
manifest,  on  the  other  hand,  that  if  the  board's 
ruling  was  maintained,  no  actual  user  of  water 
would  have  his  supply  lessened.  Every  ditch 
could  be  filled  during  part  of  the  season,  and,  with 
economy,  nearly  all  would  have  an  ample  supply 
throughout  the  entire  season.  The  policy  of  the 
board  was  accepted  and  the  harmonious  and  satis- 
factory settlement  of  rights  in  the  first  adjudica- 
tion has  been  followed  by  ten  years  of  similar 
results.  Beginning  in  opposition  to  preconceived 
ideas,  the  board  has  in  the  intervening  years  suc- 
ceeded in  defining  and  establishing  almost  4000 
Territorial  rights,  with  remarkably  few  contests 
or  protests  against  its  decisions.  The  records  of 
the  last  determination  of  Territorial  rights  made 
by  the  board  of  control  show  that  it  included 
236  appropriators,  some  of  whose  rights  dated 
back  twenty  years  and  amounted  in  the  aggregate 
to  500  cubic  feet  per  second.  All  of  the  rights 
to  a  river  and  its  tributaries  were  determined  in 
this  one  proceeding,  without  friction  between  ap- 

258 


IRRIGATION    IN   WYOMING 

propriators,  and  with  a  total  expense  to  each  of 
$1.75  in  fees  for  the  issuance  and  recording  of 
each  certificate  of  appropriation.  The  State  paid 
for  the  surveys,  but  it  has  been  immensely  bene- 
fited by  its  expenditure.  By  dealing  with  the 
appropriation  of  water  as  a  public  and  not  a  pri- 
vate matter,  it  has  promoted  development,  estab- 
lished peace  where  discord  formerly  prevailed,  and 
added  to  both  the  selling  and  taxable  value  of  irri- 
gated land.  With  rights  based  upon  the  facts 
and  clearly  defined  the  water  commissioner  has  a 
reliable  guide  for  his  action.  He  can  divide  a 
stream  in  accordance  with  his  table  of  appro- 
priations. 

The  freedom  from  litigation  in  Wyoming  is 
due  in  large  part  to  the  preliminary  surveys  and 
measurements  of  the  State  engineer's  office,  and  to 
making  the  facts  thus  gathered  the  basis  of  the 
rights  recognized. 

A  number  of  cases  were  transferred  from  the 
courts  to  the  board  of  control.  Among  these  was 
one  which  raised  a  question  of  fundamental  impor- 
tance, namely,  whether  more  water  could  be  appro- 
priated under  the  Territorial  laws  than  had  been 
used.  Before  rendering  a  decision  the  board 
measured  the  stream  and  the  ditches  and  surveyed 
the  lands  irrigated.  When  measured,  the  stream 
carried  5.25  cubic  feet  per  second.  The  first  ap- 
propriator  claimed  52  cubic  feet  per  second,  almost 
ten  times  the  total  supply.  Another  claimant 
testified  to  the  irrigation  of  60  acres,  but  claimed 
259 


IRRIGATION    INSTITUTIONS 

to  have  appropriated  water  for    150   acres.     This 
proof  contained  the  following  statement :  — 

Claimant  appropriated  water  sufficient  for  150  acres  of  land 
and  now  claims  water  for  said  land.  He  does  not  use  said 
water,  but  if  farming  becomes  more  profitable,  he  may  desire  to 
cultivate  his  land  and  his  appropriation  was  made  to  cover  all 
said  land. 

The  map  which  accompanied  this  proof  showed 
that  only  100  acres  of  the  150  could  be  irri- 
gated from  the  ditch  then  built,  the  remainder 
being  on  the  opposite  side  of  the  stream ;  so  that, 
if  the  appropriation  had  been  made,  it  was  made 
without  either  beneficial  use  or  means  of  diver- 
sion. The  order  of  the  board  fixed  the  appropria- 
tion at  the  amount  of  water  needed  for  60  acres. 
Accompanying  that  decision  was  the  following 
statement :  — 

Proof  states  that  water  for  150  acres  has  been  appropriated. 
If  this  were  true,  how  was  it  appropriated  ?  It  was  not 
diverted ;  it  was  not  used ;  and  the  question  arises,  does  the 
belief  of  an  appropriator  that  he  will  at  some  future  time 
require  a  certain  volume  of  water  constitute  an  appropriation 
of  that  volume  ?  The  claimant  states  that  he  may  wish  to 
use  the  water  when  farming  becomes  more  profitable.  Mean- 
time, others  have  used  all  the  water  of  the  stream  without 
waiting  for  the  larger  returns.  In  all,  435  acres  of  land  is 
now  irrigated.  On  this  land,  six  farmers,  with  their  families, 
have  their  homes.  The  land  now  cultivated  requires  more 
water  than  the  stream  supplies,  and  the  users  under  later  rights 
have  less  than  they  need.  The  proofs  of  the  appropriators 
show  this,  and  the  engineer's  gauging  of  the  stream  in  July 
confirms  it,  its  discharge  being  5.25  cubic  feet  per  second, 
while  the  needs  of  the  land  now  irrigated,  based  on  i  cubic 
260 


IRRIGATION   IN   WYOMING 

foot  per  second  for  each  70  acres,  is  6.21  cubic  feet  per 
second.  If,  then,  the  appropriation  claimed  is  allowed,  the 
water  for  the  additional  90  of  the  150  acres  will  be  taken  from 
a  present  user  and  given  to  a  proposed  user,  to  be  held  as  a 
speculative  commodity  until  it  becomes  valuable  enough  for 
him  to  use  or  to  be  sold  to  those  now  using  it. 

The  report  of  the  State  engineer  for  1900  says 
that  9418  parties  are  appropriators  of  water  under 
the  Wyoming  law.  Thirty-six  hundred  and  forty- 
nine  of  these  acquired  their  rights  under  the  Territo- 
rial law,  the  remainder  under  the  State  law.  Nearly 
all  of  the  Territorial  rights  have  been  established 
by  the  board  of  control.  These  rights  were  ac- 
quired under  a  diversity  of  conditions  and  under 
beliefs  regarding  the  nature  of  appropriation  which 
differed  widely  from  the  principles  which  have 
governed  the  board's  action.  Nevertheless,  the 
board's  action  has  resulted  in  a  final  settlement  of 
these  titles  in  nearly  every  instance.  There  has 
been  no  more  discontent  over  its  rulings  than 
accompanies  the  determination  of  an  equal  number 
of  land  filings.  The  contrast  between  the  stability 
of  water  rights  in  Wyoming  and  the  uncertainty, 
the  litigation,  and  the  excessive  appropriations 
which  prevail  in  the  surrounding  States,  shows  that 
the  existence  of  better  conditions  in  Wyoming  is 
not  a  matter  of  accident,  but  is  due  to  the  opera- 
tion of  a  more  effective  plan. 

In  one  of  its  early  rulings  the  board  refused  to 
recognize  the  transfer  of  rights  from  the  place 
where  acquired  to  other  lands.  This  refusal  was 

261 


IRRIGATION   INSTITUTIONS 

based  on  the  fact  that  there  was  no  statute  confer- 
ring such  right  or  denning  a  procedure  which  would 
give  notice  to  other  appropriators  who  might  be 
injured  by  the  transfer,  or  furnish  a  reliable  guide 
to  the  water  commissioners.  This  ruling  has  been 
frequently  objected  to  and  is  now  being  contested 
in  the  courts.  The  board  has  had  the  following 
additional  reasons  for  refusing  to  recognize  these 
transfers :  The  party  seeking  to  make  such  transfer 
has  never  been  willing  to  surrender  the  right  to 
water  for  the  land  described  in  the  original  certifi- 
cate or  to  accept  a  right  for  an  equal  number  of 
acres  elsewhere.  In  every  case  the  real  object  of 
the  transfer  was  to  establish  a  right  to  more  water. 
In  every  case  the  changes  proposed  would  injure 
other  appropriators  and  increase  the  labor  and 
difficulties  of  the  State  irrigation  authorities. 

A  case  now  in  the  courts  fairly  illustrates  the 
character  of  all  these  transfers.  The  first  appro- 
priator  on  the  stream  received  a  certificate  of  ap- 
propriation from  the  board  of  control  giving  him  a 
right  to  water  for  the  irrigation  of  700  acres  of  land. 
The  location  of  the  land  was  described  by  legal 
subdivisions  and  the  maximum  amount  of  water 
allowed  for  this  land  was  I  cubic  foot  per  second 
for  each  70  acres.  On  the  stream  were  three 
appropriators.  There  was  water  enough  for  two 
of  them  but  not  enough  for  all  three.  In  order  to 
increase  his  water-supply  the  third  appropriator 
bought  from  the  first  his  appropriation  for  one- 
half  the  time.  The  construction  placed  on  the 

262 


IRRIGATION   IN   WYOMING 

appropriation  in  this  transfer  was  that  the  right 
was  to  10  cubic  feet  of  water  per  second,  regard- 
less of  the  necessities  of  the  land.  In  selling  the 
right  to  this  amount  of  water  for  one-half  of  the 
time,  the  first  appropriator  did  not  abandon  any 
of  the  land  described  in  his  original  statement. 
On  the  contrary,  he  extended  the  ditch  so  as  to 
include  additional  lands.  The  party  who  bought 
the  water  for  half  the  time  did  not,  in  the  transfer 
or  elsewhere,  designate  the  use  to  which  he  in- 
tended to  put  this  water,  nor  the  land  to  which  it 
was  to  be  applied  if  used  for  irrigation.  The 
practical  result  of  the  sale  was  to  more  than 
double  the  demand  made  on  the  stream  by  the  first 
appropriation,  to  destroy  the  rights  of  the  second 
appropriator,  and  to  give  them  to  the  third  ap- 
propriator. The  board  of  control  refused  to  rec- 
ognize the  sale,  and  litigation  to  compel  it  to  do 
so  followed.  The  decision  of  the  lower  court  held 
that  the  sale  was  valid,  and  an  appeal  was  taken 
to  the  supreme  court,  where  the  matter  now  rests. 
In  the  decision  of  the  lower  court  it  was  held,  — 

That  the  right  to  the  use  of  water  is  a  property 
right  which  belongs  to  the  appropriator  and  can 
be  sold  and  disposed  of  as  other  property ; 

That  water  rights  acquired  for  irrigation  prior  to 
the  passage  of  the  State  law  may  be  used  on  any 
land  whatsoever  at  the  will  of  the  appropriator ; 

That  an  appropriation  of  water  up  to  the  maxi- 
mum amount  allowed  by  the  law  constitutes  a  right 
to  a  continuous  flow  of  water  up  to  that  amount, 

263 


IRRIGATION   INSTITUTIONS 

regardless  of  the  necessities  of  the  land  for  which 
the  appropriation  was  acquired. 

All  these  rights  were  acquired  during  the  Terri- 
torial period  and  before  the  passage  of  the  law  of 
1886.  At  that  time  rights  were  wholly  based  on 
the  necessities  of  the  land,  and  the  decision  of  the 
court  could  not  be  based  on  the  statutes  of  Wyoming, 
but  on  the  decisions  of  other  courts  based  on  entirely 
different  statutes.  It  is  not  believed,  therefore,  that 
it  will  be  sustained  by  the  supreme  court.  If  it  is, 
water  rights  acquired  during  the  Territorial  period 
will  become  personal  property.  The  water  of  the 
public  streams  will  become  a  form  of  merchandise, 
and  limitations  to  beneficial  use  a  mere  legal  fic- 
tion. It  will  render  futile  and  useless  the  require- 
ment of  the  State  statute  that  the  lands  to  which 
the  appropriation  is  attached  must  be  described 
in  the  certificates,  because  the  right  can  then  be 
separated  from  this  land  without  any  legal  formality 
as  soon  as  the  certificate  is  recorded.  If  water  is 
to  be  so  bartered  and  sold,  then  the  public  should 
not  give  streams  away,  but  should  auction  them 
off  to  the  highest  bidder.  Commenting  on  this 
decision,  Fred  Bond,  State  engineer  of  Wyoming, 
in  his  last  annual  report,  says  :  — 

There  was  nothing  in  the  order  of  the  board  authorizing 
the  use  of  any  more  water  than  the  amount  necessary  for  the 
irrigation  of  the  land  described,  nor  does  it  state  what  this 
amount  is.  The  Springvale  Ditch  Company  (the  party  sell- 
ing the  right)  was  not  decreed  the  use  of  10  cubic  feet  per 
second  of  time,  nor  was  it  given  the  use  of  any  other  spe- 

264 


IRRIGATION   IN   WYOMING 

cific  number  of  feet  of  water ;  but  it  was  decreed  the  use  of 
water  to  irrigate  700  acres  of  land,  an  amount  not  to  exceed 
i  cubic  foot  per  second  of  time  for  each  70  acres  irrigated. 
In  the  view  of  the  board  there  is  a  vast  difference  between  the 
granting  of  the  use  of  a  flow  of  10  cubic  feet  per  second  of 
time  outright  and  independent  of  use,  and  the  granting  of  a 
sufficient  flow  to  irrigate  700  acres  of  land.  The  wording  of 
the  decree  shows  this  conclusively.  The  board  did  not  under- 
take to  designate  the  exact  amount  of  water  needed  by  the 
Springvale  Ditch  Company  to  irrigate  the  land  described. 
In  fact,  it  did  not  know. 

In  the  settlement  of  Territorial  rights,  the  first 
step  is  the  notice  of  the  survey.  This  is  given  by 
publication  and  also  by  registered  mail  to  each  of 
the  claimants. 

When  the  surveys  are  completed,  the  next  step 
is  the  notice  of  the  division  superintendent  to  ap- 
propriators  regarding  the  time  and  place  of  giving 
proof.  With  this  notice  is  sent  a  blank  statement 
which  serves  as  a  guide  in  the  presentation  of  the 
facts  which  govern  the  amount  and  priority  of 
rights.  There  usually  goes  also  a  letter  intended 
to  act  as  an  additional  guide  to  those  not  familiar 
with  the  working  of  the  law. 

The  proof  of  the  claimants  is,  as  a  rule,  sub- 
mitted by  themselves.  This  proof  is  generally 
taken  at  some  point  within  the  irrigated  territory 
most  convenient  of  access  to  the  water  users.  In 
extensive  districts  it  is  often  taken  at  several 
points. 

After  all  proofs  have  been  submitted,  a  tabula- 
tion is  made  of  the  statements,  showing  the  order 


IRRIGATION   INSTITUTIONS 

of  priorities,  the  area,  and  description  of  the  lands 
claimed  to  have  been  irrigated.  This  tabulation, 
together  with  the  different  proofs,  is  open  for  pub- 
lic inspection  of  all  the  claimants  to  water,  and  as 
a  rule  is  critically  scrutinized  by  other  parties, 
although  not  always. 

The  certificate  of  appropriation  issued  by  the 
board  of  control  on  the  completion  of  its  determi- 
nation of  rights,  describes  the  land  and  places  the 
limitation  on  the  water  right  which  is  to  govern 
the  action  of  the  water  commissioner. 

Appropriation  under  State  Laws 

The  settlement  of  Territorial  rights  has  now 
practically  been  completed,  and  hereafter  the  more 
important  business  of  the  board  of  control  will  be 
the  supervision  of  future  appropriations  and  the 
issuance  of  certificates  of  appropriation  for  the 
water  actually  used  in  order  to  govern  and  protect 
all  interests  and  prevent  disputes.  The  law  pro- 
vides that  any  party  desiring  to  establish  a  right 
to  water  must,  before  he  begins  the  construction 
of  new  works  or  the  enlargement  of  old  ones,  se- 
cure a  permit  or  license  from  the  State  engineer. 
The  application  for  this  license  requires  that  he 
set  forth  in  prescribed  form  — 

The  name  and  post-office  address  of  the 
applicant ; 

The  source  of  the  water-supply ; 

The  nature  of  the  proposed  use ; 
266 


IRRIGATION    IN   WYOMING 

The  location  and  description  of  the  proposed 
works ; 

The  time  within  which  it  is  proposed  to  begin 
construction ; 

The  time  required  for  the  completion  of  con- 
struction ;  and 

The  time  required  for  the  application  of  the 
water  to  the  proposed  beneficial  use. 

In  case  the  proposed  right  is  for  irrigation,  the 
applicant  gives  the  legal  subdivisions  of  the  land 
to  be  irrigated,  with  the  acreage  in  each  subdivi- 
sion. It  is  further  required  that  the  application 
shall  be  accompanied  by  a  map  in  duplicate,  show- 
ing the  course  of  the  ditch,  the  course  of  the 
stream,  and  the  lands  to  be  irrigated.  Before 
accepting  the  application  the  State  engineer  is 
required  to  make  a  careful  examination  of  the 
filing  and  of  the  accompanying  map.  If  there 
are  errors,  the  papers  must  be  returned  to  the 
applicant  with  instructions  for  their  correction. 
When  in  proper  form,  they  are  accepted  and  filed. 
Then  follows  an  examination  of  all  the  interests 
to  be  considered  in  connection  with  the  new  appli- 
cation. If  it  is  found  that  there  is  unappropriated 
water  in  the  stream,  that  the  proposed  use  is  bene- 
ficial and  reasonable,  that  it  will  not  impair  exist- 
ing rights,  that  it  is  not  detrimental  to  the  public 
welfare,  and  that  the  applicant  is  able  to  carry  out 
the  construction  proposed,  it  is  the  duty  of  the 
State  engineer  to  grant  the  permit.  If,  on  the 
contrary,  the  proposed  use  threatens  existing 


IRRIGATION   INSTITUTIONS 

rights  or  seems  to  be  made  in  bad  faith,  or  is  in 
any  way  prejudicial  to  the  public  welfare,  it  is  the 
duty  of  the  State  engineer  to  refuse  the  permit. 
If  the  State  engineer  finds  that  the  volume  to  be 
diverted  is  extravagant,  or  that  any  of  the  land 
described  in  the  application  cannot  be  watered 
from  the  proposed  ditch,  or  that  the  time  named 
in  the  filing  for  the  completion  of  the  application 
to  a  beneficial  use  is  too  great,  he  may  make  such 
modifications  as  shall  bring  the  application  within 
the  purpose  of  the  law.  Construction  cannot  legally 
proceed  until  the  State  engineer  has  approved  the 
application.  This  gives  large  powers  to  the  State 
engineer,  but  the  applicant  is  protected  from  ar- 
bitrary action  by  his  right  of  appeal.  Any  person 
deeming  himself  aggrieved  by  any  action  of  the 
State  engineer  may  appeal  to  the  State  board  of 
control.  If  dissatisfied  with  the  findings  of  the 
board,  he  may  carry  the  appeal  to  the  district 
court. 

After  a  permit  is  granted  reports  of  progress 
are  required,  and  a  failure  to  go  forward  with  the 
work  within  one  year  from  the  date  of  approval 
by  the  State  engineer  forfeits  the  right,  and  the 
permit  is  cancelled.  This  removes  all  uncertainty 
as  to  what  rights  on  the  streams  are  valid.  A 
letter  addressed  to  the  State  engineer  concerning 
any  appropriation  or  concerning  all  the  appro- 
priations on  any  stream  will  bring  full  information. 
This  is  an  effective  protection  against  over-diver- 
sion, and  prevents  any  waste  of  energy  and 

268 


IRRIGATION   IN   WYOMING 

capital  in  the  building  of  works  for  which  there  is 
no  water. 

The  right  to  appropriate  water  can  be  obtained 
only  by  compliance  with  the  law.  Use  without 
compliance  will  not  answer.  Rights  cannot  be 
established  by  prescription.  Taking  water  from  a 
Wyoming  stream  without  a  permit  from  the  State 
engineer's  office,  or  cutting  timber  from  State  land 
without  a  permit,  are  both  misdemeanors,  and  for 
the  same  reason.  Those  who  comply  with  the 
water  law  receive  a  definite  title  to  water.  The 
title  comes  from  the  State,  and  is  a  State  patent  to 
a  share  in  the  stream. 

Upon  the  completion  of  the  works,  and  when 
the  water  has  been  applied  to  the  beneficial  use 
proposed,  notice  is  given  to  the  State  engineer, 
who  makes  an  examination  of  the  works  and 
reports  to  the  board.  If  the  appropriation  has 
been  perfected  in  accordance  with  the  terms  of  the 
application  and  the  permit  of  the  State  engineer, 
a  certificate  is  issued  by  the  board  of  control. 
This  certificate  is  of  the  same  character  as  the  one 
discussed  in  connection  with  the  adjudication  of 
Territorial  claims.  The  priority  of  the  appropri- 
ation dates  from  the  time  of  filing  the  application. 
A  right  once  certified  can  be  lost  only  by  failure 
to  keep  the  works  in  order  and  to  use  the  water 
for  a  period  of  two  successive  years.  The  State, 
after  issuing  these  titles  to  water,  protects  them. 


269 


IRRIGATION   INSTITUTIONS 

Distribution  of  Water 

This  brings  us  to  the  last  and  most  trying  duty 
of  the  board, —  the  division  of  streams  among 
those  legally  entitled  to  their  flow.  All  that  has 
preceded  is  simply  preparatory  to  this.  For  con- 
venience in  distribution,  and  to  secure  prompt 
service  in  times  of  drouth,  the  four  divisions  are 
subdivided  into  districts.  These  subdivisions  are 
made  by  the  board  as  the  necessity  arises,  and, 
like  the  greater  divisions,  their  boundaries  lie  along 
the  drainage  lines.  For  each  district  the  governor 
appoints  a  water  commissioner,  who  has  immediate 
charge  of  the  water-supply  in  his  district.  Over 
him  is  his  division  superintendent,  and  the  State 
engineer  is  over  all.  A  table  is  prepared  for  each 
stream,  showing  the  priorities  and  the  volume  of 
each  appropriation.  The  commissioner  is  fur- 
nished with  copies  of  this  table  so  that  he  and 
the  water  users  can  have  a  clear  understanding  as 
to  the  relative  rights  of  all  who  share  in  the  use  of 
the  water-supply.  When  there  is  a  scarcity,  or 
some  one  is  deprived  of  water  to  which  he  is 
entitled,  the  commissioner  is  called  on  to  regulate 
the  distribution.  Each  ditch-owner  is  required  to 
place  in  his  ditch  a  measuring  flume  and  head- 
gate,  so  that  the  volume  diverted  may  be  measured 
and  the  flow  regulated.  If  the  use  of  water  by 
any  ditch  interferes  with  the  rights  of  others  having 
prior  appropriations,  the  head-gate  of  the  offend- 
ing ditch  is  closed,  wholly  or  partially.  When  a 

270 


IRRIGATION   IN   WYOMING 

gate  has  once  been  set  by  a  commissioner,  it  may 
not  be  changed  or  interfered  with.  The  commis- 
sioners are  clothed  with  police  power  necessary 
for  the  enforcement  of  the  law. 

The  care  with  which  the  State  guards  these 
rights,  causes  water  users  to  respect  them.  Instead 
of  the  uncertainty  which  once  existed  when  each 
did  what  was  right  in  his  own  eyes  without  regard 
to  the  rights  of  his  more  peaceable  or  less  favor- 
ably situated  neighbor,  there  is  now  certainty  that 
each  will  receive  his  just  share.  If  there  is  ob- 
jection to  any  ruling  of  the  commissioner,  the  rule 
is  obeyed,  but  the  matter  is  referred  to  the  division 
superintendent.  If  his  ruling  is  not  satisfactory, 
the  matter  may  be  carried  up  to  the  State  engi- 
neer or  to  the  courts. 

Rights  to  Stored  Water 

The  Wyoming  law  making  i  cubic  foot  per 
second  for  each  70  acres  of  land  irrigated  the 
minimum  duty  of  water  was  an  amendment  to  the 
original  act.  It  would  have  been  much  more  con- 
venient if  the  limit  had  been  i  cubic  foot  per 
second  to  80  acres,  but  those  who  favored  the 
amendment  feared  this  would  be  too  high  a  duty, 
and  the  one  fixed  upon  was  a  compromise.  There 
is  no  doubt  it  could  be  set  aside  if  it  could  be 
affirmatively  shown  that  more  water  was  actually 
needed,  but  in  no  instance  thus  far  has  this  been 
done,  and  with  the  higher  duty  of  water  which 
now  prevails,  it  is  doubtful  if  it  ever  will  be. 

271 


IRRIGATION   INSTITUTIONS 

The  Wyoming  law  contains  no  specific  provi- 
sion for  establishing  rights  to  stored  water.  The 
number  and  importance  of  the  reservoirs  recently 
built  will  make  it  necessary  to  have  legislation  on 
this  subject,  and  the  experience  of  Colorado  will 
afford  as  valuable  a  guide  in  the  future  as  it  has 
in  the  past. 

In  1894  Congress  authorized  every  arid  State  to 
segregate  a  million  acres  of  land  and  act  as  trus- 
tee in  its  irrigation  and  disposal  to  settlers.  In 
accepting  this  act,  Wyoming  introduced  some 
administrative  features  which  have  proven  a  com- 
plete success.  In  the  first  place,  no  projects  are 
approved  unless  there  is  an  ample  water-supply. 
The  lands  to  be  irrigated  are  segregated  by  the 
State.  No  one  is  allowed  to  file  on  them  except 
the  shareholders  in  the  ditches  built  to  reclaim 
them.  The  ditches  are  not  built  by  the  State 
directly,  but  by  parties  who  agree  to  sell  them  to 
settlers  for  a  stipulated  sum  and  who  simply  act 
as  construction  and  colonization  companies. 

Under  this  act  four  large  canals  have  been 
built  and  as  many  communities  established  in  what 
were  before  desert  solitudes.  Since  the  passage 
of  the  law  every  large  project  in  the  State  has 
been  built  under  its  provisions,  investors  in  the 
ditches  favoring  it  for  these  reasons  :  — 

It  prevents  speculative  filings  on  land. 

The  price  at  which  the  canal  is  to  be  sold,  is 
fixed  by  the  State  before  the  investment  is  made. 
This  relieves  the  canal  builder  from  litigation  over 

272 


IRRIGATION   IN  WYOMING 

water  rights  and  the  arbitrary  reduction  of  rates 
by  the  county  commissioners. 

The  law  has  the  following  advantages  for  the 
settler :  - 

Cheap  land,  —  the  State  only  charges  fifty  cents 
an  acre ;  less  than  half  the  price  asked  by  the 
United  States  under  the  desert  land  law. 

The  State  investigates  the  water-supply  and 
certifies  that  it  is  ample. 

Each  farmer  becomes  a  part  owner  in  the  ditch, 
and  his  right  to  water  attaches  to  his  land. 

Assurance  from  the  outset  that  all  the  lands 
under  the  canal  will  be  occupied  by  cultivators 
and  that  he  will  not  be  located  in  an  oasis  in 
which  the  surrounding  lands  will  be  held  by  non- 
resident speculators,  who  furnish  no  aid  in  secur- 
ing local  improvements,  supporting  churches  and 
schools,  and  making  social  life  attractive. 

The  ruling  price  for  shares  in  the  canal  in  the 
contracts  thus  far  made  has  been  $10  per  acre. 
The  minimum  duty  of  water  has  been  I  cubic 
foot  per  second  to  each  80  acres.  The  transfer  of 
the  property  to  the  farmers  is  to  take  place  when 
from  75  to  90  per  cent  of  the  water  rights  have 
been  sold.  Prior  to  this  transfer  the  company 
exercises  the  right  to  maintain  and  operate  the 
canal  and  to  charge  the  settlers  the  actual  ex- 
penses of  this  operation.  This  is  an  advantage 
to  both  parties.  It  gives  to  the  settlers  the 
benefit  of  experienced  management  in  the  early 
years  of  the  enterprise,  and  it  gives  to  the  in- 
T  273 


IRRIGATION    INSTITUTIONS 

vestor  control  of  the  property  until  it  has  been 
sold. 

In  some  of  its  details  the  Wyoming  irrigation 
code  needs  modification,  to  adapt  it  to  changing 
conditions,  and  because  it  was  in  the  first  place  a 
compromise  between  the  advanced  views  of  re- 
formers and  the  conservatism  of  those  who  wished 
to  pattern  after  the  older  irrigation  States.  On 
the  whole,  however,  the  system  justifies  the  com- 
mendation bestowed  upon  it  by  William  E.  Smythe 
in  "  The  Conquest  of  Arid  America  "  :  — 

These  laws  and  this  administrative  system  have  not  only 
given  peace  and  prosperity  to  the  irrigation  industry  of  Wyo- 
ming. .  .  .  Other  States  have  copied  them  extensively,  and 
there  can  be  no  question  that  in  the  end  they  will  become 
common  to  the  entire  arid  region.  Idaho,  Nebraska,  South 
Dakota,  Kansas,  and  Washington  have  enacted  portions  of  the 
Wyoming  laws.  In  all  the  other  States,  with  the  single  ex- 
ception of  California,  the  example  of  Wyoming  has  produced 
results,  and  there  is  hope  that  even  California  will  learn  in 
time  that  irrigation  and  litigation  are  not  necessarily  synony- 
mous terms. 

Wyoming's  place  as  the  lawgiver  of  the  arid  region  is  due 
neither  to  geographical  location  or  to  superior  natural  resources  ; 
certainly  it  is  not  due  to  large  population.  It  owes  its  com- 
manding position  solely  to  the  character  and  ability  of  a  few 
public  men  who  happen  to  have  found  in  this  line  of  work 
their  best  opportunity  for  usefulness.  As  a  result  of  this 
fortunate  circumstance,  Wyoming  occupies  among  western 
States,  at  the  beginning  of  the  twentieth  century,  a  relation 
not  unlike  that  which  Massachusetts  and  Virginia  held  to  the 
States  of  the  Atlantic  seaboard  at  the  beginning  of  the  nine- 
teenth century. 


274 


CHAPTER  XII 

IRRIGATION   IN  THE  OTHER  ARID  AND  SEMI-ARID 
STATES 

THE  State  irrigation  systems  described  in  the 
four  preceding  chapters  illustrate  the  issues  which 
confront  Western  irrigators.  To  describe  the  irri- 
gation codes  of  the  other  States  would  be  to  repeat 
much  that  has  been  said  in  these  chapters  and 
would  be  neither  interesting  nor  instructive. 
There  are,  however,  no  two  States  in  which  the 
irrigation  systems  are  wholly  alike,  owing  to  the 
fact  that  each  commonwealth  has  been  free  to 
frame  its  own  laws  and  evolve  its  own  customs. 
This  statement  applies  to  both  laws  and  business 
methods.  Some  of  the  special  features  of  the 
other  arid  States  and  Territories  will  be  reviewed 
in  the  pages  which  follow. 

Arizona 

Water  was  used  in  irrigation  in  Arizona  before 
the  Nile  was  diverted  by  Joseph  to  protect  Egypt 
from  famine.  The  race  which  built  these  works, 
with  their  history  and  civilization,  have  long 
passed  into  oblivion,  but  the  well-defined  evidences 
of  their  engineering  skill  still  remain. 

275 


IRRIGATION   INSTITUTIONS 

Modern  irrigation  is  of  recent  date.  It  began 
when  military  posts,  established  after  the  Civil 
War,  protected  settlers  from  the  Indians.  This 
opened  up  a  region  marvellously  rich  in  mineral 
wealth.  Food  supplies  for  miners  could  be  brought 
into  the  Territory  from  the  outside  world  only  at 
great  cost.  The  products  of  irrigation  sold  for 
high  prices,  and  this,  combined  with  the  fertile 
soil  and  almost  tropical  climate  of  the  Territory, 
made  the  returns  from  an  irrigated  farm  almost 
equal  the  dividends  from  a  bonanza  mine.  The 
irrigator,  therefore,  followed  on  the  heels  of  the 
miner  and  built  ditches  of  a  simple  character, 
either  by  individual  effort  or  cooperation,  often 
without  any  legal  formality  or  written  agreement 
between  those  interested  in  the  enterprise.  These 
works  were  enlarged  as  there  was  need  or  oppor- 
tunity, and  repaired,  as  Eastern  farmers  improve 
roads,  by  assessments  of  labor  rather  than  money. 
Until  the  coming  of  corporate  canals  and  the  in- 
troduction of  corporate  methods  at  a  later  date, 
irrigation  development  was  simple,  cheap,  and 
wholly  without  legal  regulation  or  control. 

The  first  law  for  the  appropriation  of  water  was 
passed  in  I864.1  Its  principal  sections  are  still  in 

1  Section  I.  All  rivers,  creeks  and  streams  of  running  water  in 
the  Territory  of  Arizona  are  hereby  declared  public,  and  applicable 
to  the  purposes  of  irrigation  and  mining,  as  hereinafter  provided. 

Section  3.  All  the  inhabitants  of  this  Territory,  who  own  or 
possess  arable  and  irrigable  lands,  shall  have  the  right  to  construct 
public  or  private  acequias,  and  obtain  the  necessary  water  for 

276 


IRRIGATION   IN   OTHER  STATES 

force.  All  streams  of  running  water  were  made 
public  and  could  be  used  for  irrigation  and  mining. 
Owners  of  fields  were  given  a  precedence  in  the 
right  to  use  water,  and  priorities  were  to  be  deter- 
mined by  the  dates  when  their  lands  were  first 
occupied  —  the  first  settler  having  the  first  right. 
Water  rights  were,  therefore,  limited  to  water  users 
and  were  attached  to  the  land.  No  provision  was 
made  for  the  administration  of  streams,  and  with- 
out this  these  principles  remained  inoperative  and 
dormant.  Settlers  who  were  familiar  with  the 
mining  customs  of  California  followed  the  practice 
of  that  State  of  posting  notices  on  the  banks  of 
streams  and  claiming  the  water  they  proposed  to 
divert,  and  this  practice  became  general.  These 
claims  were  usually  for  excessive  amounts.  Some 
of  the  earlier  ones  claimed  all  the  water,  and  many 
of  the  later  ones  claimed  all  of  the  surplus  water. 
The  specific  claims  to  water  from  Salt  River2 
amount  to  421,680  cubic  feet  per  second,  or  more 
than  the  flow  of  the  stream  during  its  highest 
flood  and  twenty-five  times  its  average  flow  for 
the  past  fourteen  years. 

the  same  from  any  convenient  river,  creek  or  stream  of  running 
water. 

Section  17.  During  years  when  a  scarcity  of  water  shall  exist, 
owners  of  fields  shall  have  precedence  of  the  water  for  irrigation, 
according  to  the  dates  of  their  respective  titles  or  their  occupation 
of  the  lands,  either  by  themselves  or  their  grantors.  The  oldest 
titles  shall  have  precedence  always. 

2  Bulletin  43,  Arizona  Agricultural  Experiment  Station,  by 
Professor  Alfred  McClatchie. 

277 


IRRIGATION    INSTITUTIONS 

Many  of  the  ditches  for  which  water  was  claimed 
were  never  built,  but  the  records  still  remain  as 
there  is  no  provision  for  their  cancellation.  The 
aggregate  of  the  claims  made  in  behalf  of  canals 
now  in  use  amounts  to  about  two  and  a  half  times 
their  present  total  carrying  capacity  and  more  than 
double  the  average  flow  of  the  river.  A  single 
canal  from  the  Verde,  one  of  the  tributaries  of 
Salt  River,  claims  more  water  than  has  ever  run 
in  that  stream  during  any  month  of  the  past 
fourteen  years. 

The  legislatures  of  the  Territory  of  Arizona  have 
made  additions  to  the  irrigation  law  until  the  system 
is  now  a  mixture  of  Spanish  law,  Mormon  customs, 
and  a  reflection  of  the  judicial  decisions  of  other 
arid  States.  Although  the  first  law  attached  water 
rights  to  the  land  settled  upon,  the  later  ones, 
without  repealing  it,  provide  that  any  person  or 
company  may  appropriate  water  for  delivery  to 
consumers,  for  rental,  milling,  irrigation,  mechanical, 
domestic,  or  other  beneficial  uses.  The  later  laws 
seem  to  ignore  the  land  and  to  make  the  ditch  a 
great  factor  in  the  appropriation  of  water.  In 
principle,  therefore,  if  not  in  express  terms,  they 
conflict  with  the  earlier  statute.  These  later  laws 
attempt  to  protect  irrigators  by  prohibiting  canal 
companies  from  selling  or  renting  more  water  than 
the  estimated  capacity  of  their  work,  but  these  stat- 
utes are  of  no  real  service.  The  estimated  capacity 
of  a  canal  depends  largely  on  who  makes  the  esti- 
mate ;  besides,  the  quantity  of  water  which  a  canal 
278 


IRRIGATION   IN   OTHER  STATES 

can  carry  is  not  the  factor  which  determines  the 
water-supply  of  an  irrigator.  The  vital  question  is 
whether  or  not  there  is  water  in  the  stream  to  fill 
it.  The  absence  of  any  accurate  record  of  the 
amount  of  water  in  use,  or  of  any  public  control 
over  construction  or  appropriation,  has  led  to  the 
building  of  more  ditches  and  the  selling  of  more 
rights  than  streams  can  supply  water  for. 

Contests  over  water  rights  in  Arizona  are  settled 
by  litigation,  and  streams  are  divided  by  water 
commissioners  appointed  by  the  district  judges. 
The  water  rights  for  nearly  half  the  land  irrigated 
in  Arizona  were  established  in  a  decree  adjudi- 
cating the  rights  to  water  from  Salt  River,  ren- 
dered by  Judge  Kibbey  of  Phoenix,  Arizona,  in 
1892.  This  decree  follows  the  statute  of  1864  and 
makes  the  land  the  appropriator  of  the  water  and 
the  amount  of  the  appropriations  depend  on  the 
acres  irrigated.  Although  this  decision  has  never 
been  confirmed  by  the  supreme  court,  it  has  at- 
tracted unusual  attention  because  it  has  been  prac- 
tically the  water  law  of  Salt  River  Valley  for  a 
period  of  ten  years.  In  this  decision,  it  is  held 
that  canal  companies  are  carriers  of  water;  that 
pro-rating  agreements  are  void  because  in  violation 
of  the  statutes  and  acts  of  Congress,  and  that  the 
first  settler  has  the  first  right  to  the  use  of  water, 
subsequent  settlers  following  in  order.  It  is  fur- 
ther held  that  water  rights  are  attached  to  the 
land  where  the  water  is  applied  and  that  a  transfer 
of  a  water  right  cannot  be  made  by  a  transfer  of 
279 


IRRIGATION   INSTITUTIONS 

stock  in  a  ditch  company.  The  weakness  of  this 
decision  was  its  failure  to  describe  the  land  to 
which  water  was  attached.  If  this  had  been  done, 
every  one  would  have  known  what  lands  were  en- 
titled to  water  and  what  lands  must  acquire  such 
rights.  The  failure  to  describe  the  lands  made  it 
possible  to  shift  these  rights  and  has  created  com- 
plications which  render  it  uncertain  as  to  what 
doctrine  is  ultimately  to  control  in  this  Territory. 
All  the  decision  did  was  to  give  the  number  of 
quarter-sections  of  land  under  each  canal  which 
were  entitled  to  water,  and  left  it  for  the  owners 
of  the  canal  to  make  the  distribution. 

The  situation  on  the  stream  when  this  decision 
was  rendered  made  it  necessary  that  it  should  be 
put  in  immediate  effect.  A  court  commissioner 
was  appointed  for  this  purpose,  and  he  was  fur- 
nished by  the  court  with  a  table  for  apportioning 
the  water  of  the  river  among  the  several  canals. 
It  was  made  his  business  to  determine  where  the 
lands  were  located  and  the  amount  of  water  which 
each  quarter-section  should  receive. 

While  this  litigation  was  pending,  one  of  the 
larger  corporations  bought  up  a  number  of  the 
smaller  ditches  or  a  controlling  interest  in  the  stock 
and  endeavored  to  end  the  controversy  by  means 
of  an  independent  agreement.  Two  of  the  litigants 
refused  to  sell,  and  this  plan  was  not  carried  out, 
but  a  contract  among  the  other  companies  was 
entered  into  which  practically  nullified  the  court 
decree  by  providing  for  the  division  of  the  water 
280 


IRRIGATION   IN   OTHER   STATES 

allowed  to  all  of  the  canals,  except  the  Tempe 
and  San  Francisco,  on  an  entirely  different  basis. 
A  part  of  this  contract  was  as  follows  :  — 

When  the  court  shall  determine  and  fix  by  decree  the 
amount  of  water  the  Tempe  Canal  Company,  and  the  sev- 
erally associated  plaintiffs  having  the  right  to  use  the  water 
through  and  by  the  Tempe  Canal,  and  M.  Wormser,  through 
and  by  the  San  Francisco,  shall  have  the  right  to  take  from 
said  Salt  River  in  times  of  scarcity,  then  as  between  parties 
hereto  the  remaining  waters  of  the  said  river  shall  be  divided 
between  the  parties  at  the  dam  of  the  Arizona  Canal,  one- 
third  to  be  taken  out  by  the  Mesa  and  the  said  Utah  Canal 
companies  by  mutual  agreement,  or  as  their  rights  between 
them  may  be.  And  the  other  two-thirds  shall  be  distributed 
between  the  Arizona  Canal  Company,  the  Grand  Canal  Com- 
pany, the  Maricopa  Canal  Company  and  the  Salt  River  Valley 
Canal  Company  at  their  old  dams,  or  through  the  Arizona 
Canal  and  the  Crosscut  Canal,  as  the  said  companies  may 
mutually  agree. 

In  this  contract  shares  of  stock  are  practically 
made  equivalent  to  water  rights.  It  is  an  illogical 
arrangement,  because  the  number  of  these  shares 
should  be  determined  by  the  cost  of  building  the 
canal  or  by  the  method  of  organization,  and  neither 
of  these  considerations  has  any  direct  relation  to 
the  area  of  land  irrigated  or  to  the  necessities  of 
that  land.  The  owner  of  a  large  number  of  shares 
of  stock  in  a  ditch  may  not  own  an  acre  of  land,  or 
he  may  own  large  tracts  of  land  on  which  water 
has  never  been  used,  while,  on  the  other  hand,  the 
owner  of  the  farm  first  irrigated,  who  according  to 
the  doctrine  of  beneficial  use  has  a  prior  claim  on 

281 


IRRIGATION   INSTITUTIONS 

the  stream,  may  be  a  very  small  stockholder  in  the 
ditch  which  supplies  it.  Under  the  court  decree 
ditches  were  made  carriers  of  water,  but  under 
this  contract  the  ditches  are  made  the  owners  of 
water.  Under  the  court  decree  the  revenue  of 
these  companies  would  come  from  payments  for 
services  rendered  in  carrying  water  from  the  river 
to  the  farms  irrigated,  the  companies  having  no 
more  ownership  in  the  water  than  railroads  have 
in  the  freight  they  carry.  A  decision  of  the  dis- 
trict court  rendered  in  Phoenix  in  IQOO1  sustained 
this  contract  by  holding  that  shares  of  stock  in  a 
ditch  were  practically  the  same  as  rights  to  water 
in  the  stream,  but  a  later  decision  by  the  supreme 
court2  upheld  the  original  statute  and  made  rights 
attach  to  the  land  where  they  were  acquired,  and 
their  priorities  to  be  based  on  the  date  of  settle- 
ment and  use. 

In  practice  the  owners  of  a  number  of  Arizona 
ditches  have  treated  shares  of  ditch  stock  as  water 
rights,  and  have  shifted  the  use  of  water  from  one 
piece  of  land  to  another  without  any  regard  to  the 
dates  when  the  land  was  settled.  This  shifting  of 
appropriations  has  led  to  a  rapid  rise  in  the  value 
of  water  rights.  The  owner  of  desert  land  can 
afford  to  pay  a  high  price  for  shares  of  ditch  stock 
which  control  early  priorities,  because  it  enables 
him  to  put  his  sage-brush  and  cactus  acres  on  an 
equality  with  the  farms  first  irrigated.  The  own- 

1  James  D.  Mariar  et  al.  v.  The  Maricopa  Canal. 

2  Slosser  v.  The  Salt  River  Valley  Canal  Company. 

282 


IRRIGATION    IN    OTHER   STATES 

ers  of  the  farms  first  brought  under  cultivation 
have  been  tempted  by  these  high  prices  to  sell 
their  water  shares,  but  in  doing  this  they  con- 
tribute to  their  own  downfall,  because  both  land 
and  water  have  to  be  used  in  order  to  cultivate  the 
land,  and  the  profits  of  this  cultivation  in  the  end 
determine  what  the  land  and  water  together  are 
worth.  If  one  of  these  two  elements  of  produc- 
tion increases  in  price,  it  must  reduce  the  value  of 
the  other,  and  as  ditch  stock,  or,  as  it  is  called 
there,  "  water  stock  "  has  risen,  the  price  of  land 
has  diminished.  During  the  past  five  years  the 
price  of  shares  in  old  ditches  has  nearly  quad- 
rupled, while  the  price  of  farming  land  has  in 
some  instances  grown  less.  There  can  be  no  con- 
tinuous increase  in  the  combined  value  of  land  and 
water  so  long  as  the  profits  of  agriculture  do  not 
increase;  and  if  it  shall  be  finally  held  that  the 
water  shares  can  be  transferred  separately  from 
the  land,  it  will  practically  result  in  making  all 
agricultural  values  in  this  section  inhere  in  the 
water,  because  whoever  controls  the  water  will 
have  the  power  to  determine  what  lands  shall  be 
productive  and  what  shall  be  almost  valueless. 

With  the  exception  of  the  Colorado,  all  of  the 
streams  of  Arizona  become  very  low  in  midsum- 
mer. Storage,  therefore,  is  of  unusual  importance. 
Without  regulation  there  is  scarcely  a  stream 
in  the  Territory  where  all  of  the  water  can  be 
used  and  none  where  it  can  be  used  to  the  best 
advantage.  A  law  for  the  construction  of  reser- 

283 


IRRIGATION   INSTITUTIONS 

voirs  was  passed  in  1893.  Under  it,  water  turned 
down  a  natural  channel  to  be  diverted  below  is 
subject  to  a  deduction  for  seepage  and  evaporation 
of  one-half  of  one  per  cent  for  each  mile  of  the 
distance  travelled.  A  law  authorizing  the  bond- 
ing of  counties  to  construct  public  storage  works 
was  passed  in  1901. 

The  exceptional  value  of  water  in  Arizona,  the 
wide  fluctuation  in  the  flow  of  streams,  and  the 
need  of  storage  for  their  regulation  make  the  need 
of  public  supervision  over  the  establishment  of 
water  rights  and  their  protection  in  time  of  scarcity 
of  more  than  ordinary  importance.  Without  this, 
there  must  always  be  controversy  and  litigation. 
The  situation  on  the  Gila  and  Salt  rivers  illustrates 
what  will  take  place  elsewhere  if  the  present  hap- 
hazard methods  are  to  be  continued.  In  1890  the 
region  around  Florence,  a  town  on  the  Gila,  was 
well  cultivated  and  prosperous.  Since  that  time 
ditches  have  been  built  many  miles  above.  The 
ranches  lower  down  cannot  be  watered  with  what 
comes  to  them  and  are  going  back  to  aridity.  In 
a  less  degree  the  settlers  around  Phoenix  have 
suffered  from  the  diversion  of  water  from  the 
Verde,  one  of  the  tributaries  of  Salt  River.  These 
interfering  ditches  are  from  30  to  100  miles  above 
Phoenix ;  they  take  water  when  it  is  most  needed 
as  well  as  when  it  is  most  abundant,  and  aggravate 
the  injury  by  wasteful  use  in  times  of  scarcity. 
Lack  of  public  control,  therefore,  allows  one  com- 
munity to  be  built  up  at  the  expense  of  an  older 
284 


IRRIGATION   IN   OTHER  STATES 

one.  It  will  be  nothing  less  than  calamitous  if 
these  differences  are  left  to  be  settled  by  litigation. 
It  will  array  one  section  against  another,  and  the 
bitterness  of  feeling  thus  aroused  will  add  to  the 
difficulties  of  subsequent  administration.  Here, 
as  elsewhere,  there  is  urgent  need  of  public  ad- 
ministration of  streams.  The  granting  of  titles 
to  water,  like  the  establishment  of  titles  to  land, 
should  be  a  ministerial  and  not  judicial  function ; 
and  the  legal  warfare  over  water,  which  is  the 
most  serious  menace  to  irrigation  in  Arizona,  is 
due  largely  to  the  failure  to  provide  for  this. 

New  Mexico 

The  Rio  Grande  and  Pecos  are  the  chief  rivers 
of  New  Mexico.  The  oldest  irrigation  works  now 
in  use  in  this  country  are  on  the  Rio  Grande,  where 
Spaniards  were  irrigating  the  bottom  lands  around 
Las  Cruces  when  the  Mayflower  landed  at  Plym- 
outh. Most  of  the  ditches  along  this  stream  are 
owned  by  Mexicans,  and  custom,  as  old  as  settle- 
ment, rather  than  statute  law,  governs  the  distribu- 
tion of  water.  It  is  otherwise  along  the  Pecos, 
where  irrigation  is  of  recent  date,  and  where  for 
many  years  the  range  cattle  business  was  of  first 
importance.  There  are  Mexican  settlements  along 
the  Pecos  which  are  still  ruled  by  the  customs  of 
their  forefathers,  but  on  the  main  stream  the 
methods  of  irrigation  have  been  largely  borrowed 
from  Colorado.  The  irrigation  works  of  this  val- 

285 


IRRIGATION   INSTITUTIONS 

ley  are  notable  both  for  their  cost  and  the  results 
which  have  been  obtained.  In  all,  several  million 
dollars  have  been  expended  and  an  oasis  has 
been  created  in  the  heart  of  the  waterless,  treeless 
Southwest.  The  first  enterprise  was  a  financial 
failure.  It  was  too  far  from  markets  and  too  far 
from  settlement.  In  other  ways  it  was  a  success. 

Near  the  town  of  Carlsbad,  a  Swiss  colony  built 
homes  and  planted  gardens  which  were  not  sur- 
passed in  taste  and  beauty  in  any  section  of  the 
country.  In  other  ways  the  Territory  has  been 
greatly  benefited.  Irrigation  has  been  the  cause 
of  the  construction  of  one  railroad  and  an  impor- 
tant influence  in  the  building  of  another  transcon- 
tinental line. 

The  water  laws  of  the  Territory  of  New  Mexico 
exert  little  practical  influence.  One  reason  is  that 
they  are  simply  declarative.  No  public  control 
is  exercised  over  the  division  of  water ;  there  is  no 
means  of  settling  priorities  or  amounts  of  appropri- 
ation except  through  litigation.  Another  reason 
has  been  the  fact  that  irrigation  settlements  on 
the  same  stream  are  widely  scattered  and  one 
community  has  little  knowledge  of  what  is  being 
done  elsewhere.  Thus  far  there  has  been  little 
friction  and  scarcely  any  controversy  over  water 
rights. 

On  the  Rio  Grande  each  irrigated  section  re- 
gards itself  as  practically  independent  of  the  other. 
Whenever  there  is  a  flood,  all  have  enough.  When 
there  is  a  drouth,  nearly  all  have  to  do  without, 
286 


IRRIGATION    IN   OTHER   STATES 

and  no  economy  nor  improvements  in  distribution 
would  relieve  the  shortage.  It  is  also  probable 
that  irrigators  are  on  better  terms  with  each  other 
because  of  their  common  grievance  against  Colo- 
rado, where  the  river  is  diverted  before  it  reaches 
them. 

Two  reservoirs  have  been  constructed  in  the 
channel  of  the  Pecos.  The  largest  has  an  area  of 
8000  acres,  and  supplies  the  irrigated  land  in  the 
vicinity  of  Carlsbad.  Its  success  has  stimulated 
reservoir  construction  throughout  the  Territory, 
and  two  large  reservoirs  have  been  planned  on  the 
Rio  Grande.  One,  begun  by  a  private  corpora- 
tion, has  been  delayed  by  litigation.  The  other  is 
an  international  project  intended  to  store  water  as 
a  means  of  settling  the  controversies  between  the 
United  States  and  Mexico  over  the  use  of  the  Rio 
Grande  in  this  country. 

In  1898  Congress  gave  New  Mexico  500,0x30 
acres  of  land  as  an  aid  to  the  construction  of  reser- 
voirs. This  land  can  be  sold  only  in  tracts  of  160 
acres  to  one  person  and  for  not  less  than  $1.25  an 
acre.  The  Territorial  act,  accepting  the  grant, 
authorizes  the  commissioner  of  public  lands  and 
territories  to  contract  with  parties  to  build  reser- 
voirs, no  one  contract,  however,  to  involve  the  con- 
trol of  more  than  50,000  acres.  The  cost  of  these 
works  is  to  be  paid  out  of  the  rentals  and  sales 
of  land.  Ten  corporations  have  been  formed  for 
carrying  out  these  projects,  but  it  is  probable  that 
the  act  of  Congress  providing  for  the  construction 
287 


IRRIGATION   INSTITUTIONS 

of    National   works   will    supersede    development 
under  the  Territorial  law. 

The  courts  of  New  Mexico  have  taken  advanced 
ground  on  the  subject  of  water  rights.  In  a  recent 
decision l  it  is  held  that  in  order  to  acquire  a  water 
right  in  New  Mexico  the  proof  must  show  the  land 
which  was  irrigated  and  the  years  it  was  irrigated ; 
that  it  is  not  enough  to  show  that  the  ditch  exists 
for  the  diversion  of  water.  If  this  ruling  is  ad- 
hered to,  beneficial  use  of  water  in  New  Mexico 
will  mean  more  than  it  does  in  some  sections  of  the 
West.  It  will  prevent  the  evil  of  excess  decrees, 
because  the  needs  of  the  land  will  always  serve  as 
a  measure  of  the  right. 

Kansas 

Kansas  is  on  the  border-line  of  irrigation.  In 
the  eastern  two-thirds  of  the  State  irrigation  is  not 
necessary ;  in  the  western  third  it  is.  But  this 
fact  was  not  realized  until  nearly  the  whole  of 
western  Kansas  had  been  settled  and  an  attempt 
made  to  cultivate  the  soil  by  rainfall  alone. 

The  two  perennial  streams  of  western  Kansas 
are  the  Arkansas  and  the  Republican.  Both  de- 
pend on  other  States  for  the  greater  part  of  their 
flow.  The  surface  water  of  these  streams  is 
insignificant  as  compared  with  the  greater  volume 
which  travels  slowly  underground.  Settlement 
disregarded  both  the  surface  and  the  under- 
ground channels.  It  covered  the  whole  coun- 

1  Pacific  Reporter,  Vol.  6l,  p.  III. 
288 


IRRIGATION   IN   OTHER  STATES 

try,  and  when  it  was  found  that  irrigation  was  a 
necessity,  the  settlers  on  the  upland  plains  sought 
a  water-supply  in  small  reservoirs  and  in  wells. 
Because  of  this  the  laws  of  Kansas  give  particular 
attention  to  the  protection  of  rights  to  underground 
waters.  Those  who  wish  to  establish  priorities  for 
such  supplies  have  not  only  to  file  notice  in  the 
county  where  the  well  is  situated,  but  also  in  ad- 
joining counties.  These  notices  are  in  part  for 
statistical  purposes,  but  in  part  to  enable  other 
appropriators,  who  might  be  injuriously  affected, 
to  take  steps  to  protect  their  rights.  The  statis- 
tical feature  alone  would  render  this  record  valua- 
ble, but  that  value  would  be  enhanced  if  wells 
were  also  recorded  in  some  central  office,  in  order 
that  the  records  might  be  conveniently  studied  by 
those  having  especial  interest  in  these  questions. 

Irrigation  began  in  the  vicinity  of  Garden  City 
and  Fort  Dodge.  A  number  of  large  and  costly 
canals  were  built,  as  well  as  many  smaller  ones, 
the  investment  reaching  into  millions.  The  Ar- 
kansas River  did  not  carry  water  enough  to  make 
these  works  of  value  to  farmers  or  profitable  to 
their  owners.  Recent  development  has  been  in 
the  direction  of  storage  works,  and  one  of  the 
largest  reservoir  projects  in  the  country  is  located 
on  this  stream. 

Under  the  earlier  laws  of  Kansas  riparian  rights 
were  recognized,  but  the  Act  of  1891  gives  the 
right  to  appropriate  water  west  of  the  QQth  merid- 
ian. 

u  289 


IRRIGATION    INSTITUTIONS 

So  far  as  the  declaratory  provisions  of  the  Kan- 
sas laws  are  concerned,  there  is  much  to  commend. 
They  are  generally  in  accord  with  the  best  thought 
and  experience  of  the  West ;  but  when  we  come  to 
consider  the  means  provided  for  their  administra- 
tion, the  result  is  not  so  satisfactory.  Chapter  79 
of  the  compiled  laws  of  1897  provides  for  the  ap- 
propriation of  water  from  streams  and  wells,  and 
restricts  the  right  to  beneficial  use,  and  that  when- 
ever such  use  ceases,  the  right  terminates.  Appro- 
priations are  limited  to  the  quantity  used,  and  any 
person  attempting  to  sell,  lease,  or  assign  a  right 
is  held  to  have  abandoned  it.  Under  this  law  the 
speculative  ownership  of  water  is  rendered  im- 
possible. 

Exclusive  jurisdiction  of  all  matters  relating  to 
water  rights  is  given  to  the  district  courts,  which 
are  empowered  to  appoint  water  bailiffs  to  enforce 
their  decrees.  The  commissioner  of  irrigation  and 
forestry,  the  only  State  official  who  is  supposed  to 
be  an  expert  in  irrigation  matters,  has  no  authority 
whatever. 

Nebraska 

For  many  years  the  people  of  Nebraska  had 
a  prejudice  against  irrigation.  Farming  in  the 
eastern  half  of  the  State  was  a  success  without  it, 
and  settlers  believed  that  clouds  and  rains  would 
move  westward  with  the  construction  of  railroads, 
the  ploughing  of  the  soil,  and  the  building  of  houses. 
Confidence  in  the  rainbelt  theory  was  strengthened 
290 


IRRIGATION    IN    OTHER   STATES 

by  the  wet  years  of  1883,  1884,  and  1885.  Many 
years  of  loss  and  of  hardship  and  suffering  fol- 
lowed before  this  delusion  was  overthrown.  In 
this  time  thousands  of  hopeful,  industrious  men 
not  only  lost  the  savings  of  a  lifetime,  but  the 
energy  and  ambition  with  which  to  renew  the 
struggle  for  a  competence  under  more  favorable 
conditions.  Where  it  was  possible  to  build  canals, 
irrigation  alleviated  these  disasters,  but  many  of 
the  upland  farms  have  been  abandoned. 

The  first  irrigation  law,  passed  in  1877,  made 
irrigation  canals  internal  improvements  and  gave 
corporations  organized  to  build  them  power  to 
condemn  rights  of  way.  In  1889  an  act  estab- 
lished the  doctrine  of  appropriation  as  a  part  of 
the  water  law  of  this  State,  section  i,  article  i 
reading  as  follows  :  — 

The  right  to  the  use  of  water  flowing  in  a  river  or  stream, 
or  down  a  canyon  or  ravine,  may  be  acquired  by  appropriation 
by  any  person,  or  persons,  company  or  corporation  organized 
under  the  laws  of  the  State  of  Nebraska,  provided  that,  in  all 
streams  not  more  than  50  feet  in  width,  the  rights  of  riparian 
proprietors  are  not  affected  by  the  provisions  of  this  act. 

In  1895  Nebraska  adopted  a  system  of  State 
administration  of  streams  which  resembles  very 
closely  the  Wyoming  system.  A  board,  consisting 
of  the  governor,  attorney-general,  and  commis- 
sioner of  public  lands  and  buildings,  has  control 
of  streams  and  of  their  use  in  irrigation.  The 
secretary  of  this  board  is  its  executive  officer  and 
performs  all  the  duties  of  a  State  engineer.  He 
291 


IRRIGATION   INSTITUTIONS 

is  not  given  this  title,  because  the  State  officers 
are  named  in  the  constitution,  and  an  engineer  is 
not  included  among  them.  The  secretary  has  two 
assistant  secretaries  who  are  in  fact  superintend- 
ents of  irrigation.  Each  has  charge  of  one  of  the 
two  water  divisions  into  which  the  State  is  divided. 
No.  I  includes  the  Platte  and  its  tributaries  west 
of  the  mouth  of  Loup  River,  and  No.  2,  the  Loup, 
White,  Niobrara,  Elkhorn,  and  all  other  lands  not 
included  in  division  No.  i.  The  State  is  further 
divided  into  water  districts,  for  each  of  which 
an  under  secretary  or  water  commissioner  is 
appointed. 

When  this  board  was  organized  in  April,  1895, 
it  was  confronted  by  the  same  difficulties  that 
beset  the  Wyoming  authorities.  For  years,  ditches 
had  been  built  without  regulation  or  supervision. 
There  was  no  record  of  priorities  and  the  lawsuits 
which  had  taken  place  had  complicated  rather 
than  settled  the  ownership  of  streams.  Since  that 
time  the  chief  endeavor  of  the  board  has  been  to 
bring  order  out  of  this  chaos.  In  this  it  has  made 
rapid  progress.  The  rights  of  463  appropriators 
have  been  determined  and  407  permits  for  new 
ditches,  covering  in  all  1,700,000  acres  of  land, 
have  been  issued. 

The  attorney-general  is  a  valuable  member  of 
the  board,  but  it  would  be  an  advantage  if  more 
members  were  men  skilled  in  irrigation  affairs. 
This  weakness  has  thus  far  had  little  practical 
weight  because  the  secretary  who  acts  as  State 
292 


IRRIGATION   IN   OTHER  STATES 

engineer  has  been  given  a  large  measure  of  dis- 
cretionary authority.  Since  the  inauguration  of 
public  control  of  streams,  irrigation  matters  in 
Nebraska  have  been  well  managed.  Owing  to 
the  care  taken  to  determine  the  lands  actually  irri- 
gated, excessive  appropriations  have  been  pre- 
vented and  this  has  led  to  a  general  acceptance  of 
the  board's  action.  The  size  of  ditches  has  had 
no  weight  except  that  they  must  be  large  enough 
to  carry  the  water  needed.  It  is  the  use  of  the 
water  which  controls.  The  law  makes  one  seven- 
tieth of  a  cubic  foot  per  second  the  maximum  vol- 
ume which  can  be  diverted  for  the  irrigation  of  an 
acre  of  land.  This  has  to  be  measured  at  the 
head-gate ;  hence,  it  includes  losses  from  seepage 
and  evaporation  in  transit.  Aside  from  litigation 
over  riparian  rights,  there  have  been  no  legal  con- 
tests of  importance. 

The  Loup  and  the  Platte  are  the  two  large 
rivers  of  Nebraska.  Both  are  perennial  streams, 
easily  diverted,  and  bordered  by  broad,  gently 
sloping  valleys.  Irrigation  along  the  Loup  has 
suffered  from  the  tendency  of  farmers  to  depend 
on  rain.  This  causes  them  to  refuse  to  enter  into 
continuing  contracts  and  makes  the  annual  in- 
come of  ditch  companies  uncertain.  The  most 
serious  obstacle,  however,  is  the  conflict  between 
the  common-law  doctrine  of  riparian  rights1  and 
the  right  of  diversion  and  use  of  water  under  the 
doctrine  of  appropriation.  The  riparian  statute 

1  Section  2088  of  the  Consolidated  Statutes  of  1891. 


IRRIGATION    INSTITUTIONS 

was  a  part  of  a  law  passed  in  1866.     It  reads  as 

follows :  — 

So  much  of  the  common  law  of  England  as  is  applicable 
and  not  inconsistent  with  the  constitution  of  the  United 
States,  with  the  organic  law  of  this  Territory,  or  with  any 
law  passed,  or  to  be  passed,  by  the  legislature  of  this  Terri- 
tory, is  adopted  and  declared  to  be  the  law  within  said 
Territory. 

Although  the  supreme  court  has  made  a  number 
of  decisions  interpreting  this  statute,  its  meaning 
is  still  in  doubt.  In  Clark  v.  Cambridge  and 
Arapahoe  Irrigation  and  Improvement  Company 
(45  Nebraska,  page  798),  it  is  held  that  the  com- 
mon-law doctrine  with  respect  to  riparian  proprietors 
prevails  in  Nebraska  except  as  modified  by  statute, 
but  as  it  has  been  practically  repealed  by  statute, 
this  is  not  conclusive.  In  a  recent  decision,  how- 
ever (Crawford  Company  v.  Hathaway,  60  Ne- 
braska, page  754),  the  court  throws  so  much  doubt 
on  the  question  of  whether  the  common  law  super- 
sedes the  right  to  divert  streams  as  to  cause  grave 
apprehension  among  irrigation  interests.  There 
have  been  two  re-hearings  of  this  case,  but  a  final 
ruling  has  not  yet  been  rendered. 

Rights  of  appropriators  are  protected  by  water 
commissioners.  The  State  is  divided  into  districts 
based  on  drainage  lines.  Five  districts  have  been 
created  in  division  No.  i.  Commissioners  are 
paid  by  the  counties  in  which  services  are  ren- 
dered. Nebraska  is  exceedingly  liberal  in  its 
treatment  of  irrigators.  There  are  no  charges  for 
294 


IRRIGATION    IN   OTHER   STATES 

surveys  made  in  the  determination  of  appropria- 
tions, and  in  taking  testimony  the  only  expense 
which  appropriators  have  to  meet  is  the  charge 
for  a  stenographer. 

South  Dakota 

The  most  successful  irrigated  district  in  South 
Dakota  is  the  region  surrounding  the  Black  Hills. 
The  streams  which  flow  out  of  these  mountains 
furnish  a  valuable  means  of  supplying  the  home 
markets  of  the  great  mining  camps  of  Deadwood 
and  Lead  City.  In  the  eastern  and  central  part 
of  the  State  irrigation  has  never  received  much 
attention.  But  little  has  been  done  to  divert  and 
use  the  Missouri,  and  for  some  reason  not  known 
there  has  been  a  falling  off  in  the  irrigation  from 
artesian  wells.  Interest  in  irrigation  development 
is,  therefore,  confined  to  the  extreme  western  por- 
tion of  the  State. 

The  subject  has  received  but  little  attention  from 
the  State  legislature.  The  laws  provide  that  the 
holder  of  a  possessory  right  to  mineral  or  agricul- 
tural lands  shall  be  entitled  to  use  streams,  and 
they  require  the  filing  of  a  certificate  of  location 
and  the  posting  of  a  copy  of  this  notice  at  the  head 
of  the  ditch.  There  is  also  provision  for  the  incor- 
poration of  ditch  companies,  which  are  required  to 
begin  work  within  ninety  days  after  their  forma- 
tion. A  law  passed  in  1897  indicates  that  the 
people  of  the  State  do  not  look  with  much  favor 
on  the  serious  diminution  of  streams  by  irrigators, 
295 


IRRIGATION   INSTITUTIONS 

as  it  permits  the  appropriation  of  only  the  surplus 
waters  of  lakes,  rivers,  and  creeks.  Inferentially 
it  does  not  authorize  the  use  of  the  normal  flow. 
The  question  at  once  arises :  What  is  the  surplus 
flow  of  a  stream,  and  what  is  the  surplus  depth  of 
water  in  a  lake  ? 

In  the  region  around  the  Black  Hills  a  right 
to  divert  the  surplus  waters  has  little  value,  be- 
cause crops  need  irrigation  as  badly  in  July,  when 
streams  are  below  their  normal  flow,  as  in  June, 
when  they  are  above  it,  and  a  right  which  does  not 
extend  to  the  maturing  of  crops  is  hardly  worth 
considering. 

The  limitation  on  the  use  of  streams  does  not 
apply  to  underground  waters.  Any  person  can 
sink  artesian  wells  on  land  he  controls,  and  store, 
lease,  or  sell  the  waters  obtained  therefrom.  The 
location  of  these  wells  is,  however,  subject  to  State 
supervision.  Private  wells  are  not  permitted  to 
reduce  the  flow  of  other  wells  already  in  use. 
Wells  may  also  be  dug  as  municipal  works,  the  law 
authorizing  their  sinking  by  townships  and  incor- 
porated villages.  But  little  money  has,  however, 
been  invested  in  this  sort  of  development. 

South  Dakota  has  a  State  engineer,  but  his  only 
function  is  to  act  as  a  collector  of  statistics.  Titles 
to  water  are  settled  in  the  courts.  There  is  no 
statutory  form  of  procedure,  and  no  provision 
for  compelling  all  appropriators  from  a  single 
supply  to  have  their  rights  determined  at  one 
hearing. 

296 


IRRIGATION   IN   OTHER   STATES 

Montana 

The  largest  river  flowing  from  the  eastern  slope 
of  the  Rocky  Mountains  rises  in  Montana,  and 
every  important  mountain  tributary  of  the  Mis- 
souri, except  the  Platte,  rises  in  or  flows  into  this 
State.  The  Missouri  and  Yellowstone  drain  a 
region  of  unusually  heavy  snowfall,  and  all  of  the 
principal  streams  of  Montana  have  a  large  and 
perennial  discharge.  The  diversion  of  the  Mis- 
souri is  difficult,  but  means  will  be  found  to  over- 
come its  obstacles.  The  water-supply  of  Milk 
River  is  inadequate,  but  measures  are  already 
under  way  to  reenforce  this  by  diversions  from 
other  streams. 

The  small  agricultural  development  of  Montana 
is  not  due  to  physical  obstacles  but  to  the  fact 
that  the  range  live-stock  industry  has  been  so  prof- 
itable that  settlers  have  found  free  grass  more 
attractive  than  cultivated  crops.  Whether  the 
superior  natural  pasturage  of  Montana  is  due  to 
favorable  soil  or  slightly  greater  rainfall  is  not 
certain,  but  it  is  probaby  the  latter.  Whatever  the 
reason,  it  is  certain  that  grass  grows  more  luxuri- 
antly here  than  in  States  farther  south.  Recent 
developments  give  grounds  for  the  belief  that  a 
considerable  portion  of  this  State's  area  is  suscep- 
tible of  being  cultivated  without  irrigation.  In  the 
vicinity  of  Great  Falls,  Bozeman,  and  in  the  valley 
of  the  Blackfoot  there  are  comparatively  large 
areas  where  all  the  cereals  and  alfalfa  are  being 
297 


IRRIGATION   INSTITUTIONS 

grown  with  excellent  results.  The  favorite  loca- 
tions for  dry  farming  are  on  the  western  and 
northern  slopes  of  the  mountain  ranges  and  on 
some  of  the  plateaus  where  there  is  more  than  an 
average  rainfall.  It  is  certain  that  success  in  dry 
farming  is  to  have  an  important  economic  bearing 
on  the  extent  of  the  reclaimed  area.  The  fact 
that  crops  can  be  grown  without  irrigation  means 
that  less  water  will  be  required  for  irrigation  and 
that  the  area  which  streams  will  serve  can  be 
correspondingly  extended.  It  means  that  by  deep 
ploughing,  by  winter  irrigation  and  the  construction 
of  reservoirs  enough  moisture  can  be  conserved 
to  farm  far  more  land  than  would  be  possible  with 
an  equal  amount  of  water  in  States  like  Colorado 
or  in  Territories  like  Arizona. 

As  yet,  this  greatness  is  largely  prospective. 
Far  more  water  runs  to  waste  than  is  used.  Never- 
theless, the  future  of  irrigation  is  abundantly  fore- 
shadowed by  what  has  already  been  accomplished. 
The  excellence  of  the  fruit  of  the  Bitter  Root 
Valley  has  become  known  all  over  the  country,  and 
the  barley  of  the  Gallatin  Valley  has  an  interna- 
tional reputation.  Corn  is  successfully  grown  on 
the  lower  Yellowstone,  and  everywhere  the  com- 
bination of  stock-raising  and  farming  has  been  so 
profitable  and  successful  that  its  rapid  extension  is 
one  of  the  certainties  of  the  near  future. 

In  the  mileage  of  ditches  and  acres  of  irrigated 
land  Montana  stands  third  among  the  arid  States, 
but  this  development  rests  on  a  wholly  inadequate 

298 


IRRIGATION   IN   OTHER  STATES 

foundation  of  statute  and  organic  law.  Little 
attention  has  been  given  to  water-right  ques- 
tions because  the  water-supply  of  the  State  is  so 
abundant  that  this  has  not  been  necessary.  In 
few  States  of  the  Union  are  streams  as  uniform 
in  their  flow  as  in  Montana.  Yellowstone  Lake  is 
a  great  natural  regulator  of  Yellowstone  River. 
It  holds  back  the  floods  of  spring  and  relieves 
the  shortage  in  midsummer.  On  the  Missouri 
and  most  of  its  tributaries  irrigation  has  not  thus 
far  reached  the  limits  of  the  low-water  discharge 
and  has  made  little  diminution  of  the  floods. 
Nevertheless,  there  are  streams  where  irrigators' 
rights  need  protection,  where  controversies  have 
already  become  acute.  Here  there  is  need  of 
some  final  settlement  of  titles  to  the  supply  in 
times  of  scarcity. 

The  irrigation  code  of  Montana  was  copied 
largely  from  the  laws  of  California.  It  is  a  fairly 
satisfactory  law  for  the  miner,  but  a  poor  law  for 
the  irrigator.  The  fact  that  a  water  law  which 
will  work  well  for  one  industry  is  not  suited  to 
another  is  not  as  well  understood  as  it  should  be 
in  the  West.  It  is,  however,  just  as  true  as  the 
fact  that  one  land  law  will  not  work  equally  well 
in  disposing  of  both  mineral  and  agricultural 
lands.  The  government  has  recognized  this  and 
has  enacted  one  law  for  disposing  of  placer  claims, 
another  for  coal  lands,  and  another  for  agricultural 
homesteads.  In  other  words,  the  land  laws  con- 
form to  conditions,  and  water  laws  should  do  the 
299 


IRRIGATION    INSTITUTIONS 

same.  The  difference  between  mining  and  irriga- 
tion is  that  the  use  of  water  in  mining  is  regular 
and  continuous.  In  irrigation  it  is  intermittent. 
It  ceases  entirely  in  winter  and  varies  from  day  to 
day  in  summer.  In  mining,  little  of  the  volume 
diverted  is  permanently  lost.  It  is  returned  to  the 
stream  and  can  be  appropriated  and  used  over 
and  over  again.  In  irrigation  an  average  of  two- 
thirds  of  the  water  diverted  is  dissipated.  It  mat- 
ters little  whether  rights  to  water  in  mining  are 
personal  property,  because  there  is  no  final  dis- 
posal of  the  water.  It  comes  back  again  to  public 
ownership  and  public  control.  But  when  rights 
to  water  for  irrigation  are  made  personal  prop- 
erty, it  means  a  final  control  and  disposal  of  the 
supply. 

The  absence  of  any  public  administration  of 
streams  in  Montana  and  of  any  public  supervision 
over  the  filing  of  claims  to  water  makes  it  im- 
possible to  state  definitely  what  are  the  limitations 
on  water  rights  in  that  State.  The  only  light 
which  has  been  thrown  on  this  subject  has  come 
through  the  decisions  of  the  courts  in  litigations 
over  this  question,  but  these  are  not  sufficiently 
consistent  to  form  a  definite  policy.  In  some 
cases,  appropriations  have  been  held  to  be  personal 
property,  but  not  always.  In  one  conspicuous 
instance  this  has  been  denied.  Appropriators  as 
a  rule  believe  that  they  acquire  personal  own- 
ership in  streams  and  that  they  can  rent,  sell,  or 
use  the  water  controlled  as  they  see  fit.  Some 
300 


IRRIGATION   IN   OTHER  STATES 

of  the  court  decisions  go  to  greater  lengths  in 
support  of  this  belief  than  do  the  decisions  of 
any  other  State.  In  one  instance,  an  appropria- 
tor  was  held  to  have  acquired  a  right  to  water 
for  land  on  the  south  side  of  a  stream,  although 
the  only  ditch  which  he  had  dug  and  all  the 
land  which  he  had  watered  were  on  the  north 
side. 

The  records  of  claims  to  water  in  Montana  are 
exceedingly  indefinite  and  unsatisfactory.  Claims 
are  filed  in  the  different  counties,  and  as  Mon- 
tana rivers  are  long,  the  water-right  records  of 
a  single  stream  are  often  found  in  several  coun- 
ties. Musselshell  River  forms  a  part  of  the 
boundary  between  Fergus  and  Meagher,  Yel- 
lowstone, Dawson,  and  Custer  counties.  Ditches 
on  one  side  of  the  stream  are  recorded  in  one 
county,  and  ditches  on  the  other  side  of  the  river 
in  another  county.  It  would  require  a  journey 
of  several  hundred  miles  and  an  examination  of 
five  sets  of  county  records  to  ascertain  the  ex- 
tent of  the  claims  to  this  stream.  An  examina- 
tion of  claims  to  water  from  the  Yellowstone 
and  Missouri  would  be  a  more  serious  undertak- 
ing, and  is  practically  out  of  the  question  at 
present  because  of  the  time  and  expense  it  would 
involve.  Because  of  this,  very  few  irrigators 
know  what  has  been  claimed  by  others  and  at- 
tach little  importance  to  what  they  have  claimed 
themselves. 

The  great  abundance  of  water  in  Montana 
301 


IRRIGATION    INSTITUTIONS 

threatens  to  lead  to  the  establishment  of  excess 
rights  which  will  prove  a  serious  obstacle  to  de- 
velopment in  the  future.  No  irrigation  statute 
of  any  State  goes  farther  in  the  direction  of  specu- 
lative ownership  of  water  than  section  1897  of 
the  Montana  irrigation  code,  which  reads  as  fol- 
lows :  — 

Every  person  having  the  right  to  use,  sell,  or  dispose  of 
water  and  to  engage  in  using,  selling  or  disposing  of  the  same, 
-who  has  a  surplus  not  used  or  sold,  or  any  person  having  a 
surplus  of  water  and  a  right  to  sell  and  dispose  of  the  same, 
is  required,  upon  the  payment  or  tender  to  the  person  entitled 
thereto  an  amount  equal  to  the  usual  and  customary  rates  per 
inch,  to  convey  and  deliver  to  the  person  such  surplus  of  un- 
sold water. 

Rights  to  water  in  Montana  are  determined  by 
the  courts,  and  as  there  is  no  general  record  of 
these  determinations,  there  is  great  difficulty  in 
finding  out  what  has  been  done.  Where  the 
suits  in  the  district  court  are  not  appealed,  noth- 
ing but  a  search  through  the  court's  docket  for 
all  the  years  that  have  elapsed  since  settlement 
began  will  finally  determine  what  rights  have  been 
adjudicated.  As  many  of  these  decrees  are  ren- 
dered in  suits  which  are  indexed  in  the  name 
of  the  litigants,  it  is  very  difficult  to  determine 
what  lawsuits  have  involved  settlement  of  titles  to 
streams.  In  an  effort  to  trace  down  the  water- 
right  litigation  on  one  of  the  creeks  of  this  State, 
it  was  found  that  the  court  and  county  authorities 
were  as  much  in  the  dark  regarding  the  actual 
situation  as  the  writer. 

302 


IRRIGATION    IN    OTHER   STATES 

In  looking  through  the  records  of  Silverbow 
County,  Montana,  it  was  found  that  at  some  time 
in  the  seventies  two  neighbors  became  involved  in 
a  lawsuit  over  their  water  rights.  This  lawsuit  was 
entered  in  the  name  of  the  litigants.  The  decision 
was  apparently  satisfactory,  because  there  was  no 
appeal,  and  it  is  presumed  that  for  a  time  it  gov- 
erned the  division  of  the  stream ;  but  as  time  went 
on,  one  of  the  litigants  died  and  the  other  moved 
away.  New  parties  came  in  possession  of  their 
ranches.  The  old  water  suit  was  forgotten  and 
the  new  owners  disagreeing,  another  contest  over 
the  stream  was  instituted.  There  were  two  trials 
in  the  lower  court  and  an  appeal  to  the  supreme 
court.  Large  sums  of  money  were  spent  in  the 
contest  and  witnesses  brought  from  different 
States  to  testify.  Everything  which  was  known 
to  favor  either  litigant  was  produced,  but  nowhere 
in  this  protracted  contest  was  the  original  suit 
referred  to.  It  had  evidently  been  completely  for- 
gotten and  all  trace  lost  until  overhauled  in  a 
complete  search  of  the  old  records  made  by  the 
writer. 

The  certainty  that  Montana  is  to  have  a  rapid 
growth  in  the  future,  the  equal  certainty  that  there 
will  come  with  it  a  need  for  a  definite  and  final 
settlement  of  water  titles  and  for  their  public  pro- 
tection, renders  a  change  from  the  present  lack  of 
system  and  control  one  of  the  most  urgent  needs 
of  the  near  future.  In  order  to  show  how  inade- 
quate and  ineffective  are  the  present  laws,  the 
303 


IRRIGATION   INSTITUTIONS 

following  history  of  a  typical  water-right  lawsuv, 
is  given. 

In  1864  two  men  settled  on  unsurveyed  lands 
along  Middle  Creek,  six  miles  west  of  the  town  of 
Bozeman,  Montana.  In  the  autumn  of  that  year 
each  of  these  settlers  conveyed  about  one  hundred 
miner's  inches  of  water  to  his  land  through  a  ditch 
taken  from  the  above-named  stream.  Between 
1864  and  1869  a  number  of  new  settlers  occupied 
lands  along  the  stream.  Each  constructed  his  own 
ditch  or  acquired  an  interest  in  his  neighbor's 
ditch.  These  settlers,  to  the  number  of  thirteen, 
diverted  the  stream  at  various  points  along  the 
lower  nine  miles  of  the  creek  and  became  known 
as  the  Lower  Middle  Creek  appropriators.  Lands 
had  been  filed  upon  prior  to  1870  on  the  upper 
part  of  this  stream,  but  no  water  had  been  diverted. 
This  was  due  to  the  greater  cost  of  building  ditches 
and  to  the  fact  that  the  lower  irrigators  had  acquired 
prior  rights  to  the  stream,  and  might  contest  diver- 
sion by  the  settlers  above.  To  overcome  the 
physical  obstacles  and  to  procure  means  of  litigat- 
ing their  rights  to  water,  the  settlers  on  the  upper 
part  of  the  stream  formed  an  association  called  the 
Upper  Middle  Creek  Ditch  Company.  For  the 
purpose  of  avoiding  a  conflict,  this  association  nego- 
tiated with  its  neighbors  on  the  lower  part  of  the 
stream  for  the  purpose  of  reaching  an  agreement 
regarding  a  division  of  the  water.  In  1871  this 
resulted  in  a  contract  signed  by  both  parties  inter- 
ested. It  provided  for  exchange  of  irrigation 

3°4 


IRRIGATION   IN   OTHER  STATES 

waters,  conceded  to  the  lower  users  their  prior 
rights  to  the  extent  of  the  capacity  of  their  several 
ditches,  and  agreed  to  construct  a  canal  which 
should  convey  water  from  the  Gallatin  River  to 
Middle  Creek  above  the  head-gates  of  the  lower 
users,  and  thus  reenforce  their  supply.  The  upper 
irrigators  believed  that  they  would  be  entitled  to 
take  from  the  upper  part  of  Middle  Creek  as  much 
water  as  they  turned  into  it  from  another  source ; 
and  the  contract  stipulated  that  the  holders  of  the 
prior  rights  below  consented  to  this  arrangement. 
The  contract  was  signed  by  nearly  all  of  the  lower 
appropriators  but  was  never  acknowledged  or  re- 
corded. The  supply  ditch  was  built  and  the  diver- 
sion ditches  from  the  upper  part  of  the  stream 
were  also  built.  This  did  not  prevent  disputes 
over  water,  but  they  did  not  result  in  litigation 
until  1883,  twelve  years  after  the  signing  of  the 
agreement. 

In  April,  1883,  the  lower  appropriators  to  the 
number  of  thirty-nine  brought  suit  against  the  ap- 
propriators on  the  upper  part  of  the  stream.  The 
lower  irrigators  had  just  cause  for  complaint.  The 
Middle  Creek  Ditch  Company  had  failed  to  main- 
tain the  supply  ditch  from  Gallatin  River,  and  the 
later  appropriators  above  had  diverted  the  greater 
part  of  the  stream,  causing  it  to  become  dry  at  times 
above  the  head-gates  of  the  lower  ditches.  The 
suit  was  begun  in  April  and  a  decision  rendered  in 
October,  in  which  2415  miner's  inches  was  decreed 
to  twenty-five  plaintiffs  below  and  249  inches  to 
x  305 


IRRIGATION    INSTITUTIONS 

thirty-nine  defendants  above.  Little  benefit  re- 
sulted from  this  decision.  It  is  only  referred 
to  as  preliminary  to  the  greater  contest  which 
afterward  took  place.  This  began  in  1889-90, 
when  the  Middle  Creek  Ditch  Company  began  a 
contest  against  the  upper  irrigators,  twenty-two 
in  number,  who  had  settled  on  the  bench  lands 
near  the  canyon.  More  than  two  years  elapsed  be- 
tween the  time  of  issuing  the  injunction  against 
the  defendants  and  the  beginning  of  a  trial.  In 
July,  1890,  they  were  restrained  from  interfering 
with  the  waters  of  Middle  Creek,  and  in  November, 
1891,  the  trial  began.  It  lasted  twenty -three  days, 
and  the  decision  held  that  the  lower  claimants, 
by  the  contract  of  1871,  had  abandoned  all  right 
and  interest  in  the  natural  flow  of  Middle  Creek. 
This  ruling  was  extremely  adverse  to  the  Mid- 
dle Creek  Ditch  Company,  as  it  changed  the 
date  of  nearly  one-half  of  its  appropriation  from 
the  years  1864,  1865,  1866,  1867  to  a  date  later 
than  the  contract,  or  1871.  The  plaintiff  appealed 
the  case  to  the  supreme  court,  which  in  1895 
reversed  the  ruling  of  the  lower  court  and  re- 
manded the  case  to  the  lower  court  for  a  new 
trial. 

Six  years  of  litigation  had  done  nothing  toward 
a  final  settlement.  The  long-continued  contest 
had  converted  friends  into  enemies.  The  uncer- 
tainty regarding  the  control  of  water  had  di- 
minished the  acreage  irrigated,  and  the  heavy 
assessments  to  maintain  court  expenses  had  de- 
306 


IRRIGATION   IN   OTHER  STATES 

prived  many  of  the  farmers  of  comforts  needed 
at  home.  What  was  wanted  now  was  peace  at 
any  cost.  The  irrigators  had  neither  the  means 
nor  the  disposition  to  continue  the  court  war- 
fare, and  made  a  compromise  which  the  court 
afterward  embodied  in  a  decree.  Professor  S. 
Fortier,  of  Bozeman,  Montana,  from  whom  the 
above  facts  were  obtained,  made  the  following 
comment :  — 

It  tells  the  old  familiar  story  of  heroic  efforts  to  subdue 
a  desert  and  at  the  same  time  maintain  an  action  in  court 
over  a  contested  water  right. 

From  1891  to  1895,  inclusive,  a  period  of  five  years,  the 
Middle  Creek  Ditch  Company  levied  in  cash  assessments 
$5259.50.  .  .  . 

The  writer  has  had  no  opportunity  to  ascertain  accurately 
the  aggregate  cost  to  all  the  litigants.  It  is  safe  to  say  that 
if  all  the  losses  in  time  and  money  incurred  by  the  irrigators 
on  this  stream  in  defending  their  rights  to  water  were  reck- 
oned the  sum  would  reach  $13,000. 

The  aggregate  quantity  of  water  decreed  is  136  second- 
feet.  Assuming  the  present  commercial  value  of  a  second- 
foot  of  water,  or  40  Montana  statutory  inches,  in  Middle 
Creek  to  be  $300,  the  total  value  of  the  water  adjudicated 
would  be  $40,000.  That  is  to  say,  it  has  cost  nearly  one- 
third  what  the  water  is  worth  to  obtain  a  judgment,  and  this 
judgment  is  of  little  practical  benefit  to  the  irrigators  because 
it  exists  only  on  paper.  There  is  not  a  single  measuring 
device  on  any  of  the  ditches  by  means  of  which  an  appropri- 
ation can  be  measured.  The  distribution  is  at  present  only 
guesswork,  just  as  it  was  before  a  decree  was  rendered. 

The  protracted  litigation  over  the  water-supply  of  Middle 

Creek  might  have  been  averted  under  good  water  laws  and 

an  effective  administrative  system.     If  the  State  had  kept  a 

record  from  the  first  of  the  dates  of  appropriations  and  the 

307 


IRRIGATION   INSTITUTIONS 

volumes  annually  diverted,  the  spending  of  twenty-three  days 
by  the  court  at  one  session  in  recording  well-nigh  worthless 
testimony  would  have  been  wholly  unnecessary.  Under  a  sys- 
tem of  long-continued  recorded  measurements  decrees  might 
be  given  in  accordance  with  facts ;  as  it  is  at  present  they 
are  too  frequently  based  on  the  wild  guesses  of  interested  wit- 
nesses. The  judiciary  is  in  no  way  responsible  for  the  pres- 
ent senseless  mode  of  settling  rights,  the  blame  rests  with  the 
State  legislature.  It  is  true  that  in  the  cases  reviewed,  there 
were  questions  of  law  to  be  decided,  such  as  the  exchange  of 
water  between  two  communities  of  irrigators,  and  the  aban- 
donment of  claims  to  water.  Such  questions,  however,  should 
have  been  settled  years  ago  by  legislative  enactments.  Under 
a  wise  irrigation  code,  enforced  by  competent  administrative 
officers,  it  is  safe  to  say  that  nine-tenths  of  the  water  suits  that 
now  burden  the  courts  would  have  never  arisen. 

It  is  believed  that  the  experience  of  Montana, 
and  the  contrasting  conditions  in  Canada  on  the 
north  and  Wyoming  on  the  south,  favor  the  fol- 
lowing changes  in  the  present  code  :  — 

All  records  of  claims  or  titles  to  water  from  a 
stream  should  be  kept  in  one  office. 

There  should  be  some  authority  to  supervise  the 
filing  of  claims  and  to  prevent  the  over-appropria- 
tion of  streams. 

Completed  ditches  should  be  measured  by  the 
State  and  rights  established  by  some  less  costly 
method  than  litigation. 

The  State  should  be  divided  into  districts  and 
officers  should  be  appointed  to  protect  rights  in 
times  of  scarcity. 


308 


IRRIGATION   IN   OTHER  STATES 

Idaho 

Irrigation  in  Idaho  began  in  an  overflow  of 
Mormons  from  Utah.  It  was  easy  to  build  ditches 
from  small  streams  in  the  southern  part  of  the 
State,  and  as  the  demand  for  new  farms  outran 
the  supply  in  the  parent  colony,  Utah  methods  of 
building  partnership  irrigation  works  were  ex- 
tended northward.  These  emigrants  also  took 
with  them  the  Utah  customs  of  managing  canals 
and  of  dividing  the  water-supply  by  time  rather 
than  by  volume.  The  practice  in  Utah  of  estab- 
lishing farming  villages  and  giving  to  each  settler 
in  these  villages  a  tract  of  from  two  to  ten  acres 
for  a  garden  and  the  support  of  a  few  domestic 
animals,  was  also  followed.  The  farms,  however, 
are  larger  than  in  Utah,  because  the  settlers  were 
farther  removed  from  the  influence  of  the  church 
authorities  and  stock-raising  as  an  adjunct  to  farm- 
ing made  larger  holdings  desirable.  Less  land  is 
devoted  to  cultivated  crops  and  more  to  native  hay 
than  in  the  valleys  of  Utah. 

In  western  Idaho  irrigation  began  by  miners 
turning  farmers  and  by  stockmen  building  irriga- 
tion works  in  order  to  control  the  water  fronts  and 
to  be  enabled  to  raise  hay  for  winter.  The  early 
agriculture  of  western  Idaho  had  little  to  commend 
it.  It  was  wasteful  of  water  and  injurious  to  the 
land.  With  the  construction  of  the  Oregon  Short 
Line  Railway  and  the  influx  of  capital  for  the  irri- 
gation of  the  higher  lands,  development  took  a 
3°9 


IRRIGATION   INSTITUTIONS 

corporate  form.  The  works  built  were  of  a  more 
substantial  character  and  water  began  to  be  used 
with  more  economy  and  skill.  The  story  of  the 
Chosen  Valley,  by  Mary  Hallock  Foote,  gave  a 
lifelike  portrayal  of  the  difficulties  which  have  con- 
fronted canal  builders  in  western  Idaho.  In  no 
part  of  the  arid  region  has  the  construction  of 
large  irrigation  works  been  attended  by  more 
vexatious  or  persistent  obstacles.  The  poorly 
built  ditches  of  the  first  settlers  which  watered  the 
bottom  lands  cost  but  little;  the  larger  and  more 
substantial  works  built  by  Eastern  investors  to 
water  the  bench  lands  were  much  more  expen- 
sive and  higher  charges  for  water  were  necessary. 
Settlers  rebelled  against  paying  these,  and  many 
who  filed  on  lands  refused  to  cultivate  them.  For 
years,  the  large  canals  which  divert  the  waters 
of  the  Boise,  Payette,  and  some  other  streams  have 
not  watered  half  of  the  lands  under  them.  Be- 
cause of  this,  some  of  these  projects  have  been 
financial  failures,  and  the  owners,  tiring  of  them, 
have  sold  them  to  the  landowners.  To-day  but 
one  irrigation  system  in  southwestern  Idaho  is 
owned  and  operated  by  others  than  the  farmers 
who  take  water  therefrom. 

The  water  laws  of  Idaho  are  inadequate.  The 
State  engineer  has  no  control  over  the  diversion 
of  streams.  There  is  no  central  office  of  record 
for  either  water  filings  or  for  the  rights  decreed 
to  be  vested  by  the  courts.  The  only  means 
provided  for  the  establishment  of  rights  is  an 
310 


IRRIGATION    IN    OTHER   STATES 

action  in  the  courts,  and  the  only  means  for 
protecting  these  rights  is  to  have  the  court 
appoint  a  commissioner  to  carry  out  the  decree. 
The  official  duties  of  the  State  engineer  relate 
almost  entirely  to  the  material  development  of 
the  State.  He  is  required  to  collect  facts  and 
ascertain  locations  for  reservoirs  and  the  cost  of 
their  construction,  and  to  become  familiar  with  the 
means  of  diversion  and  supplying  water  to  the 
irrigable  lands.  The  great  questions  of  appropria- 
tion and  ownership  of  streams  are,  however,  left 
entirely  to  the  courts.  The  efforts  of  Hon.  D.  W. 
Ross,  State  engineer,  for  the  improvement  of  water- 
right  contracts,  for  the  limitation  of  rights  to  the 
actual  needs  of  land,  and  for  the  attachment  of 
rights  to  the  land  rather  than  to  make  them  shift- 
ing personal  property,  has  had  much  to  do  with 
the  moulding  of  public  sentiment  in  that  State, 
which  it  is  hoped  will  in  time  be  reflected  in  its 
legislation. 

It  is  the  belief  of  the  State  engineer  that  water 
rights  are  appurtenant  to  the  land  where  acquired, 
and  in  a  few  instances  they  have  been  made  so  in 
the  court  decisions,  but  in  all  of  the  decrees  exam- 
ined by  the  writer,  the  water  does  not  seem  to  be 
attached  either  to  any  particular  tract  of  land  or  to 
any  particular  ditch,  but  to  be  appropriated  without 
conditions  as  to  place  or  manner  of  use.  It  is 
difficult  to  see  how  such  rights  can  be  construed  as 
other  than  a  gift  to  the  appropriator  of  the  amount 
of  water  named  in  the  decree,  and  it  is  more 
3" 


IRRIGATION   INSTITUTIONS 

than  probable  that  these  appropriators  will  attempt 
to  rent  and  sell  these  rights  as  appropriators  are 
doing  elsewhere  under  like  conditions.  One  thing 
is  certain :  the  decrees  do  not  contain  sufficient 
information  to  guide  a  water  commissioner  in  the 
proper  performance  of  his  duties.  He  cannot  en- 
force economy  because  he  has  no  standard  by 
which  to  measure  economy.  He  does  not  know 
where  the  water  granted  is  to  be  applied.  He 
does  not  know  how  much  water  an  acre  of  land  is 
entitled  to.  All  that  he  can  learn  from  the  decree 
is  that  certain  individuals  are  entitled  to  a  certain 
amount  of  water,  and  it  apparently  rests  with  those 
individuals  to  say  where  it  is  to  be  delivered. 

Nevada 

Nevada  has  the  distinction  of  having  a  river 
which  rises  within  its  borders  and  sinks  before  it 
leaves  them.  Interstate  water  rights  are  of  no 
concern  on  the  Humboldt.  The  Truckee,  Carson, 
and  Walker  rivers  rise  in  California  and  flow  into 
Nevada.  The  Salmon,  Bruneau,  and  Owyhee  rise 
in  Nevada  and  flow  out  of  the  State,  The  Colo- 
rado forms  the  southeastern  boundary  for  a  dis- 
tance of  150  miles,  but  is  not  claimed  as  a  Nevada 
river. 

The  legal  recognition  of  irrigation  began  in  1866. 

The  law  of  that  year  requires  any  party  desiring 

to  construct   a  ditch   or  flume  to  record,  in   the 

county  in  which  the  ditch  was  to  be  built,  a  certifi- 

312 


IRRIGATION   IN   OTHER  STATES 

cate  and  plat.  This  record  was  intended  to  give 
constructive  notice  to  all  other  proposed  appropria- 
tors.  This  law,  like  so  many  of  the  western  irri- 
gation laws,  permitted  the  indiscriminate  filing  of 
indefinite  and  ridiculous  claims. 

Twenty-three  years  elapsed  between  the  first 
irrigation  act  and  the  second.  In  1889  an  act  for 
the  filing  of  claims,  giving  the  names,  post-office 
addresses,  names  of  the  ditches,  locations  of  head- 
gates,  and  providing  for  special  books  of  record, 
was  passed.  This  law  also  provided  for  the  divi- 
sion of  the  State  into  districts  along  drainage  lines. 
Commissioners  were  to  be  appointed  in  each  dis- 
trict to  control  the  distribution  of  water.  Questions 
of  priority  were  to  be  settled  in  the  district  courts, 
and  no  person  was  to  be  allowed  to  testify  until  a 
certificate  of  claim  had  been  filed  in  accordance 
with  the  law. 

The  first  effect  of  this  act  was  a  rush  of  state- 
ments to  the  recorder's  office.  These  included 
anything  which  could  under  any  circumstances 
be  called  a  ditch.  They  included  main  ditches, 
laterals,  old  river  channels,  and  neglected  sloughs. 
In  some  cases  the  main  channel  of  the  river  was 
claimed  as  a  ditch  and  the  water  declared  to  have 
been  appropriated  by  original  construction. 

This  act  was  repealed  four  years  later,  and  noth- 
ing further  was  done  toward  the  enactment  of  an 
irrigation  law  until  1 899.  The  law  passed  in  that 
year  was  intended  to  inaugurate  a  system  similar 
to  that  of  Wyoming.  The  county  commissioners 


IRRIGATION   INSTITUTIONS 

and  county  surveyor  of  each  county  were  to  con- 
stitute a  board  of  water  commissioners,  with  duties 
and  powers  almost  identical  with  those  of  the 
board  of  control  in  Wyoming.  The  bad  feature 
of  the  law  is  that  the  administrative  unit  is  the 
county  and  not  an  entire  drainage  basin.  The 
act  leaves  it  to  the  discretion  of  county  commis- 
sioners as  to  whether  they  will  put  the  law  in 
operation.  No  board  has  done  this,  and  the  law 
has  been  practically  a  dead  letter.  The  original 
law  of  1866  is,  therefore,  the  only  one  actually  in 
force,  and  there  is  no  way  of  settling  controversies 
over  water  except  in  the  courts.  Litigation  has 
been  characterized  by  great  cost  and  barrenness 
of  results.  Where  a  litigant  has  gained  a  certain 
volume  of  water  in  a  decree,  he  has  had  no  means 
of  protecting  his  right.  He  must  either  resort  to 
force  or  institute  contempt  proceedings,  and  he 
generally  chooses  the  former.  The  lesson  of 
Nevada,  as  of  other  states,  is  the  need  of  adminis- 
trative control. 

Washington 

Washington  is  a  State  of  climatic  contrasts. 
There  are  places  west  of  the  Cascade  Range  where 
more  than  seven  feet  of  rain  falls  every  year.  The 
giant  forests  which  clothe  the  western  slopes  of 
this  range,  the  exuberant  vegetation  which  covers 
the  hillsides,  and  the  green  grass  and  beautiful 
ferns  which  are  found  in  the  valleys,  show  that 
there  is  no  need  of  additional  moisture. 


IRRIGATION    IN    OTHER   STATES 

To  a  less  extent  the  same  thing  is  true  of  eastern 
Washington.  The  rolling  hills  of  the  Palouse  coun- 
try are  one  of  the  great  granaries  of  the  West,  but 
irrigation  had  no  part  in  making  them  such.  The 
same  is  true  of  the  orchards  which  surround 
Spokane,  Pullman,  and  Colfax. 

It  is  far  different,  however,  in  central  Washing- 
ton, where  the  annual  rainfall  is  only  about  ten 
inches,  and  where  cultivated  crops  cannot  be 
grown  without  an  additional  water-supply.  The 
Yakima  River  is  the  great  industrial  factor  of  this 
part  of  the  State.  Rising  in  the  snow-clad  sum- 
mits of  the  Cascade  Range,  it  flows  eastward  to 
join  the  Columbia  through  a  valley  where  the  soil 
has  unusual  depth  and  great  fertility.  The  eco- 
nomic importance  of  the  Yakima  is  enhanced  by 
its  easy  diversion,  in  which  respect  it  is  in  striking 
contrast  to  the  Columbia,  which  also  crosses  the 
arid  portion  of  the  State  from  north  to  south,  but 
lies  far  below  the  plateaus  along  its  banks. 

In  no  part  of  the  West  outside  of  California  can 
so  many  kinds  of  crops  be  grown  on  the  same 
acre  of  land  as  in  the  irrigated  valleys  of  central 
and  southern  Washington.  Alfalfa  meadows  and 
prune  orchards,  hop-fields  and  vineyards,  apples, 
peaches,  and  Hamburg  grapes,  all  flourish  alike  in 
the  open  air,  and  the  fields  and  orchards  under  the 
canals  present  a  marvellous  contrast  to  the  light- 
colored,  ashy  deserts  which  surround  the  watered 
areas. 

As  Washington  has  no  rival  except  California  in 


IRRIGATION   INSTITUTIONS 

the  diversity  of  its  products,  it  also  is  second  only 
to  California  in  the  value  of  irrigated  land.  No- 
where else  does  unimproved  farming  land  bring  so 
high  a  price,  while  prune  orchards  in  full  bearing 
have  sold  for  $250  an  acre.  The  complete  irriga- 
tion of  the  broad  valley  of  the  Yakima  requires, 
however,  the  construction  of  large  and  costly  canals, 
but  this  development  is  menaced  by  uncertainty 
regarding  the  fundamental  right  to  use  the  waters 
of  this  State  in  irrigation.  With  the  beginning  of 
settlement  in  the  interior  valleys  of  the  State,  the 
legislature,  in  1873,  passed  a  law  for  the  regulation 
of  irrigation  and  water  rights  in  the  county  of 
Yakima.  It  was  intended  to  have  local  applica- 
tion, and  to  abrogate  the  riparian  doctrine  in  the 
part  of  the  State  where  it  has  no  climatic  fitness. 
The  confidence  which  this  legislation  gave  to 
investors  resulted  in  a  rapid  development.  Many 
canals,  some  of  them  large  and  costly  works,  were 
taken  from  the  main  stream,  and  smaller  canals 
diverted  its  tributaries. 

These  enterprises  received  a  rude  shock  in  1897, 
when  litigation  over  the  use  of  Ahtanum  Creek,  a 
tributary  of  the  Yakima,  between  a  riparian  pro- 
prietor and  the  owners  of  one  of  the  ditches,  re- 
sulted in  a  decision  which  closed  the  ditch  in 
question,  and  makes  the  use  of  water  in  irrigation 
largely  subject  to  the  voluntary  consent  of  the 
riparian  landowners.  A  similar  controversy  has 
arisen  near  the  town  of  Walla- Walla,  which  is 
surrounded  by  one  of  the  oldest  farming  districts 


IRRIGATION   IN   OTHER  STATES 

in  the  eastern  part  of  the  State.  In  this  section 
irrigation  is  not  a  necessity,  but  it  has  great 
value  and  is  being  more  and  more  employed  in 
fruit-growing.  It  has  been  found  that  as  trees 
approach  maturity  there  is  need  of  additional 
moisture  in  order  to  secure  the  largest  yield  and 
best  quality.  In  1897  litigation  over  the  right  to 
use  one  of  the  streams  near  Walla- Walla  resulted 
in  an  injunction  which  closed  the  canal  belonging 
to  Dr.  Blalock,  which  was  used  in  the  irrigation  of 
an  orchard  of  640  acres.  If  some  means  of  avert- 
ing the  results  of  this  ruling  had  not  been  found, 
the  results  would  have  been  serious;  but,  in  this 
instance,  relief  was  secured  through  the  purchase 
of  a  right  to  the  sewage  water  of  the  town  of 
Walla-Walla. 

There  is  at  present  no  public  control  over 
streams  in  Washington,  and  there  can  be  no 
effective  control  until  the  conflict  between  the 
riparian  doctrine  and  that  of  appropriation  has 
been  adjusted.  It  is  the  greatest  need  of  the 
Yakima  Valley,  and  will  in  time  be  indispensa- 
ble on  other  streams.  In  Washington,  as  else- 
where, it  is  one  of  the  governmental  functions 
which  new  conditions  have  postponed  but  which 
must  ultimately  be  assumed. 

Oregon 

In  Oregon  irrigation  is  a  matter  for  the  future. 
So  little  has  been  done  in  this  State  that  its  prob- 


IRRIGATION   INSTITUTIONS 

lems  have  not  been  defined.  The  riparian  doctrine 
is  recognized,  but  recent  decisions  have  held  that 
appropriators  of  water  for  irrigation  who  divert 
and  use  it  without  protest  cannot  afterward  be 
interfered  with  by  riparian  landowners. 


CHAPTER   XIII 
RIPARIAN  AND  INTERSTATE  RIGHTS 

THE  doctrine  of  appropriation  grew  out  of  the 
climatic  needs  of  the  arid  region,  which  makes 
the  demand  for  water  on  farms  remote  from  the 
streams  as  imperative  as  that  of  the  farms  which 
border  them.  In  addition  public  policy  favors 
the  use  of  streams  on  nonriparian  lands.  The 
upland  areas  are  better  suited  to  irrigation,  and 
crops  can  be  irrigated  with  less  labor  and  less 
water.  Locating  the  irrigated  areas  in  broad 
compact  tracts  is  economical,  and  it  secures  better 
social  and  industrial  conditions  than  is  possible  by 
restricting  irrigation  to  riparian  lands  and  confin- 
ing homes  to  the  banks  of  streams.  If  no  distinc- 
tion is  made  between  the  riparian  and  non-riparian 
lands,  it  is  possible  to  choose  the  localities  best 
suited  to  cultivation  and  to  extend  greatly  the 
acreage  which  can  be  cultivated.  Public  welfare 
requires,  therefore,  that  the  aristocracy  of  privilege 
conferred  by  the  common  law  on  riparian  proprie- 
tors shall  here  be  abrogated,  and  in  eight  States 
and  Territories  (Montana,  Wyoming,  Colorado, 
Utah,  Idaho,  Nevada,  and  the  Territories  of  Ari- 
zona and  New  Mexico)  this  has  been  done. 


IRRIGATION    INSTITUTIONS 

There  is  another  reason  why  the  rivers  of  the 
arid  region  should  not  "  continue  to  flow  as  they 
have  been  wont  to  do  from  time  immemorial." 
Every  acre  of  land  made  productive  by  irrigation 
robs  the  stream  of  a  part  of  its  water-supply.  As 
water  is  now  used,  about  two-thirds  of  all  that  is 
diverted  by  ditches  and  canals  is  taken  up  by 
growing  crops  or  absorbed  by  the  air  through 
evaporation.  Approximately  one-third  of  the  vol- 
ume diverted  returns  to  the  natural  channel 
through  waste  and  seepage.  In  the  future,  be- 
cause of  better  canals  and  more  skilful  irrigators, 
even  less  will  return.  Many  streams  will  in  time, 
therefore,  become  mere  remnants  of  their  former 
selves.  This  change  in  a  few  instances  has  al- 
ready taken  place.  So  little  water  runs  in  some 
of  the  rivers  of  southern  California  that  the  stream 
channels  are  now  grown  up  with  underbrush. 
Reservoirs  catch  the  floods  and  ditches  divert  the 
ordinary  flow.  It  is  claimed  that  the  diversion  of 
water  in  Colorado  is  causing  the  bed  of  the  Arkan- 
sas in  Kansas  to  be  filled  with  drifting  sand.  To 
water  many  western  valleys  will  involve  drying  up 
the  streams  which  flow  through  them,  and  this 
physical  fact  ought  to  be  faced  frankly  and 
honestly.  The  doctrine  of  appropriation  contem- 
plates using  all  the  water,  and  if  it  is  to  be  carried 
to  its  logical  end,  the  rights  of  riparian  proprietors 
on  many  streams  must  be  encroached  upon.  If, 
on  the  other  hand,  streams  are  not  to  be  absorbed, 
if  respect  for  riparian  rights  requires  that  a  cer- 
320 


RIPARIAN   AND   INTERSTATE   RIGHTS 

tain  volume  continue  to  run  in  the  channel,  a  lim- 
itation should  be  put  on  the  building  of  ditches, 
both  as  a  protection  to  investors  in  these  works 
and  to  prevent  the  purchase  of  worthless  water 
rights. 

In  the  eight  States  and  Territories  before  named, 
local  laws  sanction  the  complete  use  of  the  water- 
supply,  but  in  eight  other  States  (Texas,  Kansas, 
Nebraska,  the  two  Dakotas,  Washington,  Oregon, 
and  California),  which  are  partly  humid  and  in  part 
arid,  it  is  uncertain  how  much  of  any  stream  may 
be  used  in  irrigation  or  what  doctrine  governs  the 
rights  to  such  use.  This  uncertainty  has  come 
about  in  a  perfectly  natural,  if  not  inevitable,  man- 
ner. One  part  of  each  of  these  States  is  humid ; 
the  other  part  arid.  The  humid  lands  in  every 
case  were  first  settled,  and  Territorial,  if  not  State, 
governments  were  organized  before  the  develop- 
ment of  the  arid  sections  began.  Nebraska  had 
become  a  wealthy  and  populous  State  before  there 
was  any  general  recognition  of  the  fact  that  any 
part  of  the  State  needed  to  be  irrigated.  Settle- 
ment was  largely  confined  to  the  eastern  half,  where 
the  common-law  doctrine  of  riparian  rights  has  a 
climatic  fitness.  If  the  riparian  doctrine  in  Wash- 
ington and  Oregon  was  limited  to  the  region  west 
of  the  Cascades,  nothing  but  good  would  result. 
In  both  States  it  has  been  given  a  general  applica- 
tion which  is  unfortunate.  When  the  arid  sections 
of  these  States  began  to  be  reclaimed  through  irri- 
gation, the  people  directly  interested  in  this  work 

Y  321 


IRRIGATION   INSTITUTIONS 

recognized  the  need  of  a  legal  right  to  divert  the 
water  which  filled  their  ditches.  This  was  not  be- 
cause of  interference  from  riparian  proprietors 
but  as  a  better  protection  from  interference  from 
other  and  later  appropriators.  In  none  of  these 
States  did  the  dangers  of  the  riparian  doctrines 
seem  to  have  received  much  consideration  from 
irrigators  during  the  earlier  years,  nor  did  the  pas- 
sage of  laws  recognizing,  without  limitation,  the 
right  to  appropriate  water  seem  to  have  been  op- 
posed by  the  owners  of  riparian  lands.  The  two 
doctrines  of  stream  ownership,  directly  antagonistic 
in  principle,  were  put  in  operation  without  protest 
or  general  recognition  of  what  was  taking  place. 
In  all  but  two  of  these  States  both  doctrines  were 
given  unlimited  force  and  effect.  The  riparian 
doctrine  applied  to  every  stream,  so  did  the  right 
to  appropriate  all  the  water,  and  no  distinction  was 
made  as  to  whether  water  appropriated  was  to  be 
applied  to  riparian  or  non-riparian  lands.  In  two 
States,  however,  exceptions  were  made.  The  first 
irrigation  law  in  the  State  of  Washington  limited 
the  appropriation  of  water  to  Yakima  County,  and 
in  Kansas  it  applies  only  to  the  part  of  the  State 
west  of  the  99th  meridian. 

When  the  users  of  water  under  these  two  doc- 
trines came  in  conflict,  the  courts  had  to  settle  the 
issues  created ;  but  as  each  decision  dealt  with  a 
particular  and  often  local  issue,  and  had  to  be  gov- 
erned by  the  facts  submitted  by  the  parties  to  the 
litigation,  they  seldom  lay  down  general  principles, 
322 


RIPARIAN   AND   INTERSTATE   RIGHTS 

and  are  not  always  consistent  with  each  other. 
Hence,  they  do  not  furnish  a  definite  guide  for 
a  general  doctrine  or  a  complete  basis  for  the 
settlement  of  future  controversies.  Nevertheless, 
it  is  to  these  decisions,  rather  than  to  the  statutes, 
that  we  must  go  for  light  on  the  nature  of  water 
ownership  in  each  of.  the  States  where  these  two 
doctrines  now  operate. 

In  some  of  the  States  judicial  decisions  have  so 
changed  the  character  of  the  common-law  doctrine 
of  riparian  rights  that  its  ancient  landmarks  can 
no  longer  be  recognized.  The  owners  of  riparian 
lands  in  California,  Washington,  and  Oregon  have 
practically  become  privileged  appropriators  of 
water.  The  right  rests  in  the  landowner  rather 
than  in  the  land.  He  can  sell  or  surrender  it,  and 
in  Oregon  it  can  be  taken  away  by  condemnation. 
In  California  recent  decisions  have  practically  ex- 
tended the  riparian  privilege  to  all  of  the  lands 
within  the  drainage  basin  of  a  stream  instead  of 
restricting  it  to  that  of  the  proprietors  who  live 
along  its  banks.  In  the  State  of  Washington  the 
owner  of  arid  riparian  lands  can  take  water  away 
from  non-riparian  farms,  which  have  been  made 
productive  at  great  expense,  and  use  it  to  irrigate 
his  own  lands,  although  doing  so  reduces  the  flow 
of  the  stream  in  equal  or  greater  measure. 

It  would  require  more  than  finite  intelligence  to 

predict  the  doctrine  which  is  to  ultimately  control 

streams  in  the  States  where  these  conflicts  now 

exist.     The  final  solution  will  have  to  take  into 

323 


IRRIGATION    INSTITUTIONS 

account  the  rights  which  have  already  vested,  and 
the  first  thing  to  be  done  in  this  matter  is  to  say 
what  these  are.  It  would  seem  that  this  is  not 
only  legally  possible  but  that  it  is  absolutely  neces- 
sary. 

It  does  not  seem  likely  that  the  States  which 
have  recognized  riparian  rights  will  ever  abrogate 
that  doctrine.  The  sentiment  of  the  humid  dis- 
tricts will  always  be  against  a  change,  and  this 
will  be  reen forced  by  the  conservatism  which  seeks 
to  retain  a  time-honored  institution  and  by  a  grow- 
ing recognition  of  the  dangers  created  by  the  lax 
laws  under  which  appropriations  are  claimed  and 
the  more  lax  and  imperfect  methods  by  which  they 
are  adjudicated.  As  a  choice  between  limiting 
rights  to  riparian  lands  and  making  streams  the 
personal  property  of  speculative  appropriators, 
public  sentiment  will  approve  the  former. 

In  the  arid  West,  it  will  not  answer  to  give  the 
riparian  lands  the  sole  control  of  streams,  because 
this  will  prevent  the  best  and  largest  development, 
and  because  such  limitation  is  not  warranted  by 
any  element  of  natural  justice.  The  water  which 
fills  the  stream  does  not  come  from  lands  owned 
by  riparian  proprietors.  Its  storehouse  is  in  the 
distant  mountains.  The  snows  and  rains  fall  as  a 
rule  on  public  land,  and  are  as  much  the  property 
of  the  non-riparian  as  of  the  riparian  landowner. 
The  districts  where  streams  rise  belong  chiefly  to 
the  government.  The  preservation  of  the  forests 
upon  which  the  perennial  character  of  the  water- 
324 


RIPARIAN   AND   INTERSTATE   RIGHTS 

supply  depends  is  looked  after  by  the  government 
and  paid  for  by  the  non-riparian  alike  with  the 
riparian  proprietors.  There  is  no  reason  why  the 
public  should  favor  either  the  riparian  or  non- 
riparian  landowner,  but  the  public  is  vitally  con- 
cerned in  securing  the  largest  and  best  use  of  its 
valuable  resources,  and  this  requires  that  the  best 
land  should  be  irrigated  and  water  used  where  it 
can  be  diverted  to  the  best  advantage  and  made 
to  produce  the  largest  results. 

If  riparian  rights  are  to  be  recognized,  they 
should  be  made  inseparable  from  riparian  lands. 
If  it  is  good  law  and  good  policy  to  give  the  pres- 
ent owner  of  riparian  lands  a  right  in  the  stream, 
it  is  equally  good  law  and  good  policy  to  protect 
the  future  owner  of  these  lands  in  this  right.  This 
cannot  be  done  if  riparian  rights  are  held  to  be 
transferable.  The  recognition  of  the  power  to  sell 
these  rights  is  contrary  to  the  teachings  of  experi- 
ence in  either  arid  or  humid  countries.  Such  sales 
in  California  have  already  helped  to  create  monopo- 
lies in  water,  and  made  it  an  instrument  of  specu- 
lative extortion  not  permitted  by  the  worst  of  the 
State  laws  where  rights  are  acquired  by  appropria- 
tion alone. 

Every  individual  right  should  be  defined  in  some 
way,  and  its  volume,  or  the  land  to  which  it  at- 
taches, determined  by  some  systematic  procedure, 
so  that  on  every  stream  those  interested  may  know 
how  much  of  the  water-supply  is  controlled  and 
how  much  remains  to  be  utilized  by  others.  It 
325 


IRRIGATION   INSTITUTIONS 

would  seem  that  a  statute  to  provide  for  this  could 
be  enacted,  which  would  be  at  least  as  effective 
as  the  slow  evolution  of  a  doctrine  by  piecemeal 
through  court  decisions. 

The  enactment  of  laws  so  antagonistic  in  princi- 
ple as  those  which  recognize  both  appropriations 
and  riparian  rights  to  streams  has  been  made  easier 
by  mistaken  methods  of  economic  legislation.  It 
is  the  exception  rather  than  the  rule  to  have  com- 
plex economic  problems  dealt  with  by  men  who 
have  made  a  study  of  these  questions.  While  it 
would  seem  that  one  of  the  first  concerns  of  West- 
ern statesmen  would  be  to  conserve  the  most  vital 
resource  of  Western  civilization  by  laws  which 
would  insure  that  the  water-supply  should  be  used 
on  the  largest  possible  area  and  by  the  greatest  num- 
ber of  people,  such  has  not  been  the  case.  Irri- 
gation laws  have  too  often  been  drafted  by  those 
having  special  interests  to  serve,  and  who  look  no 
farther  than  their  own  personal  needs.  The  owner 
of  a  pond  in  South  Dakota,  wishing  to  fill  it  from 
a  stream,  drew  an  irrigation  bill  which  would  allow 
him  to  do  this  and  secured  its  passage  by  an 
accommodating  legislature,  and  in  this  way  the 
entire  State  was  affected  by  a  very  troublesome 
law. 

The  framing  of  the  irrigation  laws  of  the  North- 
west Territory  of  Canada  was  preceded  by  a  care- 
ful investigation  of  the  operation  of  the  irrigation 
laws  of  other  countries.  The  provinces  of  Austra- 
lia devoted  several  years  to  a  study  of  the  irriga- 

3*6 


RIPARIAN   AND   INTERSTATE   RIGHTS 

tion  codes  of  other  lands  before  attempting  to 
frame  one  for  their  own.  The  laws  were  framed 
by  the  commissioners  who  made  these  investiga- 
tions, and  their  conclusions,  so  far  as  they  relate  to 
the  riparian  doctrine,  have  a  special  significance 
and  value  to  this  country  because  they  deal  with 
the  conditions  which  prevail  here  and  apply  to 
countries  having  laws  and  inherited  jurisprudence 
not  unlike  our  own.  The  Canadian  law  abrogates 
riparian  rights.  The  commissioner  who  framed  it 
explains  why  this  was  done,  as  follows :  — 

The  investigations  in  this  subject  had  led  to  the  conclu- 
sion that  the  foundation  provision  necessary  in  an  act  of  this 
kind  was  that  riparian  rights  should  be  abolished  and  the 
Government  given  a  free  hand  to  apportion  or  distribute  the 
water  and  control  its  use  in  such  a  way  that  the  greatest  good 
to  the  greatest  number  would  result  therefrom. 

The  abolition  of  riparian  rights  and  vesting  the  absolute 
control  of  all  water  in  one  strong  central  authority  are  the 
important  provisions  of  the  act.  In  many  of  the  States  in  the 
United  States  riparian  rights  have  been  abolished,  and  title 
to  the  water  vested  in  the  commonwealth ;  but  there  the 
vacant  lands  belong  to  the  Federal  Government,  and  it  is 
impossible  to  so  combine  the  land  and  water,  owing  to  this 
divided  authority,  as  to  secure  the  most  beneficial  results 
^therefrom. 

The  provisions  of  our  act  on  the  subject  of  riparian  rights 
will  no  less  have  to  undergo  the  test  of  litigation,  but  assum- 
ing that  the  decision  of  the  courts  will  be  in  favor  of  the 
act,  there  is  no  doubt  that  the  one  central  authority,  being 
vested  with  ownership  and  control  of  both  the  land  and  the 
water,  should  make  it  possible  to  so  administer  the  two  as 
to  secure  the  greatest  possible  benefit  to  the  greatest  num- 
ber. 

327 


IRRIGATION   INSTITUTIONS 

In  the  provinces  of  Victoria  and  New  South 
Wales,  in  Australia,  the  modifications  of  the  com- 
mon law  are  clearly  defined  by  statute.  In  Vic- 
toria the  riparian  proprietor  has  the  right  to  use 
water  for  domestic  purposes  and  for  cattle  without 
any  regard  to  the  effect  of  such  use  on  the  riparian 
proprietors  below.  That  is,  they  can  use  water 
as  long  as  the  stream  furnishes  it,  and  if  such  use 
destroys  the  stream,  those  below  have  no  remedy. 
Riparian  proprietors  are  also  required  to  register 
their  claims,  so  that  every  user  of  water  from  the 
stream  may  know  exactly  their  character.  In  the 
province  of  New  South  Wales  riparian  rights  are 
subject  .to  the  following  restrictions:  "The  occu- 
pier of  land  on  the  bank  of  a  river  or  lake  shall 
have  the  right  to  use  water  for  domestic  purposes, 
for  the  watering  of  cattle  or  other  stock,  or  for 
gardens  not  exceeding  five  acres  in  extent  used  in 
connection  with  the  dwelling  house." 

Interstate  Rights 

The  need  of  some  adjustment  of  these  two  doc- 
trines, or  at  least  of  some  definite  understanding 
of  their  respective  spheres  of  influence,  is  rendered 
far  more  important  by  the  conflicts  which  have 
arisen  over  the  division  of  interstate  streams. 
Even  under  the  most  favorable  conditions,  the 
settlement  of  interstate  water  rights  will  always 
be  perplexing,  but  they  have  been  complicated  in 
this  country  by  the  differences  in  State  irrigation 
3*8 


RIPARIAN   AND   INTERSTATE   RIGHTS 

laws  and  by  the  manner  in  which  State  boundaries 
ignore  drainage  lines. 

From  the  Alleghanies  to  the  Rockies,  the  exact 
location  of  State  boundaries  is  a  matter  of  small 
consequence,  but  it  is  otherwise  in  the  arid  region, 
broken  as  it  is  by  lofty,  precipitous,  and  sometimes 
impassable,  mountain  barriers.  Here  boundaries 
which  ignore  the  influence  of  mountains  and 
streams  are  often  a  source  of  great  inconvenience 
and  economic  loss  to  settlers.  Many  perplexing 
questions  regarding  water  rights  in  irrigation 
could  have  been  avoided  if  State  boundaries  had 
followed  drainage  rather  than  mathematical  lines. 
It  would  be  a  great  gain  to  the  settlers  of  north- 
western California  if  the  boundary  between  that 
State  and  Nevada  had  followed  the  summit  of  the 
Sierras.  They  would  then  be  near  their  State 
capital  and  living  in  a  commonwealth  having  a 
climate  and  productions  similar  to  their  own.  As 
it  is,  they  must  journey  through  Nevada  and  al- 
most past  its  capital  to  reach  the  seat  of  govern- 
ment in  their  own  State.  It  would  give  Nevada 
control  of  the  sources  of  its  chief  river  and  irriga- 
tors  a  security  which  they  do  not  now  enjoy.  The 
present  boundary  crosses  Lake  Tahoe  and  cuts 
off  the  headwaters  of  the  Truckee  River.  All  of 
the  water  now  goes  to  Nevada  and  probably 
always  will,  but  it  is  physically  possible  to  turn 
the  lake  into  California,  and  so  long  as  there  is 
uncertainty  as  to  how  far  each  State  is  supreme 
within  its  own  domain,  there  will  be  something 
329 


IRRIGATION   INSTITUTIONS 

lacking  in  the  stability  of  the  Nevada  irrigator's 
rights. 

The  eastern  boundary  of  Idaho  skirts  the  west- 
ern base  of  the  Teton  Mountains.  Streams  which 
rise  on  the  western  slope  of  those  mountains  flow 
into  Idaho,  and  the  settlers  along  their  banks 
do  business  in  that  State.  Those  who  live  in 
Wyoming  are  separated  by  a  mountain  barrier  from 
both  the  State  capital  and  the  county  seat  of  their 
county.  To  reach  either,  they  must  pass  through 
the  county  seat  of  the  nearest  county  in  Idaho, 
make  a  long  and  expensive  detour,  and  cross  two 
States.  Some  of  the  ditches  which  irrigate  lands 
in  Idaho  begin  in  Wyoming,  but  the  rights  to 
water  cannot  be  determined,  because  the  State 
water  laws  are  different  and  there  is  no  jurisdic- 
tion across  State  lines. 

In  a  few  instances,  rivers  are  State  boundaries. 
The  rights  of  appropriators  on  one  bank  are  of  a 
wholly  different  character  from  those  on  the  oppo- 
site side.  Lesser  Snake  River  crosses  the  boun- 
dary between  Colorado  and  Wyoming  four  times. 
The  ditches  which  head  on  the  loops  in  Wyoming 
have  had  their  rights  adjudicated,  but  the  owners 
of  ditches  from  the  loops  on  the  Colorado  side  of 
the  boundary  pay  no  attention  to  these  priorities. 

Bear  River  rises  in  Utah,  flows  into  Wyoming, 
crosses  again  into  Utah,  returns  to  Wyoming, 
thence  flows  into  Idaho  and  finally  empties  into 
Great  Salt  Lake  in  the  State  where  it  began. 
From  its  source  to  its  mouth,  all  of  the  level  lands 
330 


RIPARIAN   AND    INTERSTATE   RIGHTS 

along  its  banks  are  being  irrigated.  The  appropri- 
ations already  made  are  in  excess  of  the  water-sup- 
ply but  there  is  no  way  of  protecting  priorities. 
A  change  of  less  than  twenty  miles  in  the  location 
of  these  State  boundaries  would  have  put  an  end 
to  all  these  perplexities  by  putting  all  of  the  irri- 
gated lands  in  one  State. 

There  are,  however,  other  water-right  questions 
not  so  easily  solved.  The  rivers  which  rise  on  the 
eastern  slope  of  the  Rocky  Mountains  flow  into 
humid  States  before  they  reach  the  sea.  In  this 
way  riparian  landowners  and  the  owners  of  steam- 
boats are  interested  in  the  water-supply,  and  one  of 
the  most  momentous  problems  of  the  future  is  to 
determine  how  these  respective  interests  shall  be 
adjusted.  The  settlement  of  rights  between  appro- 
priators  for  irrigation  from  an  interstate  stream  is 
a  perplexing  question,  but  it  is  the  simplest  form 
which  interstate  water  rights  assume.  On  nearly 
all  the  important  rivers,  rights  for  irrigation  are 
complicated  by  rights  for  mills  and  factories  and 
with  the  interests  of  navigation.  The  North  Platte 
river  will  illustrate  this.  It  rises  in  Colorado, 
crosses  the  southeast  corner  of  Wyoming,  where  it 
is  reenforced  by  tributaries  which  drain  one-fourth 
of  that  State ;  then  entering  Nebraska  on  its  west- 
ern border  it  empties  into  the  Missouri  at  the 
eastern  boundary.  Its  headwaters  are  in  a  region 
wholly  arid.  The  country  through  which  it  flows 
and  the  region  it  drains  in  Wyoming  is  arid,  as  is 
the  western  third  of  Nebraska,  while  the  eastern 
33 1 


IRRIGATION   INSTITUTIONS 

two-thirds  of  Nebraska  is  humid.  How,  then,  are 
the  respective  interests  of  these  three  common- 
wealths to  be  adjusted  and  how  is  the  stream  to  be 
divided  ?  The  rights  in  Colorado  have  been  ad- 
judicated by  the  State  courts.  They  are  already 
vested  and  are  the  personal  property  of  the  ditch- 
owners.  In  Wyoming  the  rights  on  the  main 
stream  have  not  been  determined,  but  those  of 
more  than  a  thousand  appropriators  on  the  trib- 
utaries have  been  settled  by  the  State  board  of 
control.  In  Nebraska  a  large  number  of  appro- 
priators' rights  have  been  determined  by  a  State 
tribunal,  while  all  of  the  stream  is  claimed  by  the 
riparian  proprietors  and  an  organization  of  mill- 
owners  has  been  perfected  to  contest  any  use  of  the 
river  in  irrigation.  The  nature  of  the  rights  and 
the  tribunals  which  determine  them  are  different 
in  each  of  these  three  States,  yet  all  three  govern 
the  same  water-supply.  This,  however,  does  not 
end  the  possible  issues  to  which  the  use  of  this 
stream  in  irrigation  may  give  rise.  The  river  is 
one  of  the  important  feeders  of  the  Missouri.  The 
latter  is  a  navigable  stream  and  reenforces  the 
Mississippi,  where  navigation  interests  are  still 
more  important.  The  ditches  already  built  will, 
when  used,  absorb  a  large  part  of  the  flow  and  will 
then  only  reclaim  a  small  fraction  of  the  lands 
needing  irrigation.  The  aggregate  of  the  appro- 
priations already  declared  vested  in  Colorado, 
Wyoming,  and  Nebraska  far  exceeds  the  total  flow 
of  the  stream,  but  if  this  water  is  used,  may  not 
33* 


RIPARIAN   AND   INTERSTATE   RIGHTS 

the  claim  be  made  (as  it  has  been  made  elsewhere) 
that  this  use  impairs  navigation,  and  give  rise  to 
litigation  to  determine  whether  the  farm  of  the 
desert  above  or  the  steamboat  below  is  to  have 
first  claim  on  the  mountain  snows  ? 

The  several  States  have  based  their  authority 
to  supervise  the  division  and  use  of  non-navigable 
streams  within  their  borders  for  irrigation  and 
other  beneficial  purposes  on  customs  recognized 
by  the  federal  authorities  and  on  a  law  passed  by 
Congress  in  I866,1  but  if  the  reservation  in  this 
law  regarding  the  protection  of  vested  rights  re- 
quires the  irrigator  to  recompense  both  navigation 
and  milling  interests  for  all  the  damage  his  use  of 
water  may  cause,  it  will  put  an  end  to  irrigation  of 
non-riparian  lands,  because  the  natural  obstacles 
are  in  themselves  a  sufficient  handicap. 

The  United  States  Supreme  Court  has  held,  in 
United  States  v.  Rio  Grande,  D.  &  I.  Co.,  I/4U.  S. 
690,  that  the  rights  of  navigation  on  the  mouth  of  a 
stream  may  be  enforced  over  the  water-supply  of  its 

1  Whenever,  by  priority  of  possession,  rights  to  the  use  of  water 
for  mining,  agricultural,  manufacturing  or  other  purposes,  have 
vested  and  accrued,  and  the  same  are  recognized  and  acknowledged 
by  the  local  customs,  laws  and  the  decisions  of  courts,  the  possess- 
ors and  owners  of  such  vested  rights  shall  be  maintained  and  pro- 
tected in  the  same;  and  the  right  of  way  for  the  construction  of 
ditches  and  canals  for  the  purposes  herein  specified  is  acknowledged 
and  confirmed;  but  whenever  any  person,  in  the  construction  of 
any  ditch  or  canal,  injures  or  damages  the  possession  of  any  settler 
on  the  public  domain,  the  party  committing  such  injury  or  damage 
shall  be  liable  to  the  party  injured  for  such  injury  or  damage. 

333 


IRRIGATION    INSTITUTIONS 

remotest  tributary.  In  Howell  v.  Johnson,  89  Fed. 
5  56,  the  claim  of  each  Western  State  to  exercise 
exclusive  control  over  the  non-navigable  streams 
within  its  borders  has  been  disputed.  In  this 
case  the  issue  was  between  appropriators  of  water 
in  Montana  and  Wyoming,  both  States  where  ri- 
parian rights  have  been  abrogated  by  State  laws, 
and  where  the  paramount  sovereignty  of  each 
State  over  streams  has  been  affirmed  by  State 
statutes  and  court  decisions.  The  decision  is  not 
based  on  the  laws  of  either  State,  but  chiefly  on 
rights  held  to  attach  to  the  public  land,  and  if  it 
shall  be  sustained  in  subsequent  decisions  cannot 
fail  to  have  a  far-reaching  influence  on  the  rights 
of  irrigators  as  now  recognized  and  established. 
The  grounds  on  which  this  ruling  is  based  are  set 
forth  in  the  following  extract :  — 

It  is  urged  that  in  some  way  the  State  of  Montana  has 
some  right  in  these  waters  in  Sage  Creek  or  some  control 
over  the  same.  It  never  purchased  them ;  it  never  owned 
them.  In  support  of  this  view,  the  court  is  cited  to  a  great 
many  decisions  which  apply  to  navigable  rivers  and  lakes  and 
tide-waters.  Here  we  approach  a  different  subject.  There  is 
no  claim  that  Sage  Creek  is  a  navigable  stream.  A  State, 
upon  its  admission  into  the  Union,  acquires  by  virtue  of  its 
sovereign  powers  the  title  to  the  beds  of  all  navigable  rivers, 
lakes  and  tide-waters  within  its  boundaries,  subject,  however, 
to  its  rights  of  commerce  and  navigation.  This  title  gives 
it,  to  some  extent,  a  control  over  the  waters  of  such  rivers 
and  lakes,  and  the  power  to  establish  and  determine  what 
shall  be  the  riparian  rights  which  shall  pertain  to  those  who 
hold  the  title  to  lands  bordering  on  the  same.  .  .  .  When 
a  party  has  obtained  title  to  property  from  the  National  Gov- 

334 


RIPARIAN   AND    INTERSTATE   RIGHTS 

ernment,  the  State  government  has  no  right  to  destroy  that 
title,  except  under  the  power  of  eminent  domain.  The  State 
of  Montana  cannot  step  in  and  say,  "  The  right  to  the  water 
of  Sage  Creek,  which  the  plaintiff  acquired  under  the  laws  of 
Congress,  you  cannot  exercise  in  this  State."  This  would  be 
the  taking  of  the  plaintiffs  property  from  him  without  due 
process  of  law.  It  is  a  recognized  rule  of  law  that  a  person 
who  has  appropriated  water  at  a  certain  point  in  a  stream  is 
entitled  to  have  so  much  of  the  waters  of  said  stream  as  he 
appropriated  flow  down  to  him  to  the  point  of  his  diversion. 
The  defendants,  according  to  the  allegations  in  the  bill,  are 
violating  this  rule  and  should  be  enjoined. 

A  suit  recently  brought  in  the  Supreme  Court  of 
the  United  States  —  The  State  of  Kansas  v.  The 
State  of  Colorado — involves  a  settlement  of  the 
respective  rights  of  the  people  of  these  two 
States  to  the  water  of  the  Arkansas  River.  This 
river  rises  in  the  Rocky  Mountains,  and  after 
flowing  nearly  300  miles  in  Colorado,  crosses 
its  eastern  border  into  Kansas,  where,  after  trav- 
ersing the  State  for  310  miles,  it  enters  Okla- 
homa, finally  emptying  into  the  Mississippi  on  the 
eastern  boundary  of  Arkansas.  The  sources  of 
this  river  are  in  the  arid  region ;  its  outlet,  in  the 
humid  region.  At  the  lower  end  of  the  river 
navigation  is  the  principal  interest.  At  the  upper 
end,  the  right  to  use  its  water  in  agriculture  is  of 
overshadowing  importance,  and  a  denial  of  this 
right  would  be  a  disaster  of  national  importance. 
Over  300,000  acres  of  land  are  irrigated  from  this 
river  in  Colorado.  Fourteen  water  districts  have 
been  created,  and  the  water  commissioners  of  those 
335 


IRRIGATION   INSTITUTIONS 

districts  divide  the  main  stream  and  its  tributaries 
among  1750  ditches.  Over  two  and  one  half  million 
dollars  have  been  expended  on  irrigation  works  in 
one  of  the  fourteen  water  districts,  and  over  a  mil- 
lion dollars  of  private  capital  has  been  invested  in 
the  construction  and  improvement  of  storage  works. 
The  soil  and  climate  are  well  suited  to  the  growing 
of  sugar  beets  and  a  number  of  other  products  of 
large  acreage  value,  and  great  sums  of  money  have 
been  invested  in  factories  for  the  manufacture  of 
sugar  and  in  other  industries  dependent  on  irriga- 
tion. The  interests  which  hinge  on  the  right  to  use 
this  river  in  irrigation  represent,  not  only  immense 
sums  of  money,  but  the  prosperity  and  happiness 
of  a  very  large  number  of  people. 

Western  Kansas  is  also  arid.  In  much  of  the 
valley  of  the  Arkansas,  crops  cannot  be  grown  by 
the  aid  of  rainfall  alone.  Large  sums  of  money 
have  been  expended  in  that  State  in  the  construc- 
tion of  irrigation  canals  to  divert  this  river.  The 
canals  at  Garden  City  alone  are  said  to  have  cost 
over  a  million  dollars.  Many  small  tracts  of  land 
are  being  irrigated  by  windmills,  which  pump  water 
from  what  is  known  as  the  underflow  of  this  river. 

Discussion  as  to  the  respective  rights  to  this 
river,  in  these  two  States,  has  been  going  on  for 
several  years.  Failure  to  reach  an  understanding 
has  culminated  in  this  suit  in  which  Kansas,  in  its 
own  behalf  and  in  behalf  of  the  people  of  that 
State,  asks  that  Colorado  be  restrained  from  any 
further  diversion  of  the  stream  or  any  new  use 


RIPARIAN   AND   INTERSTATE   RIGHTS 

which  would  work  an  injury  to  the  people  of 
Kansas.  In  this  complaint  it  is  stated  that,  while 
the  rainfall  of  the  western  part  of  the  Arkansas 
Valley  in  Kansas  is  not  sufficient  to  mature  culti- 
vated crops,  for  many  years  crops  were  success- 
fully grown  because  the  river  was  not  restricted  to 
its  surface  channel  but  spread  out,  through  the 
porous  subsoil  which  underlies  the  visible  stream, 
in  a  broad  sheet  coextensive  with  the  width  of 
the  valley,  and  that  this  underground  portion  of  the 
river,  called  the  underflow,  not  only  furnished  the 
needed  moisture  for  crops  but  was  a  convenient 
source  of  supply  for  water  for  domestic  purposes 
and  watering  stock.  It  is  held  in  this  complaint 
that  the  water  taken  from  the  river  in  Colorado 
has  greatly  reduced  both  the  surface  and  under- 
flow, reduced  the  taxable  and  productive  value  of 
a  large  part  of  the  State,  and  caused  much  personal 
hardship  and  suffering;  that,  unless  some  action 
is  taken  to  prevent  the  further  storage  of  water  in 
Colorado  and  extending  its  use  to  new  lands,  it 
will  deprive  the  farmers  in  Kansas  of  both  their 
surface  and  subterranean  water-supplies  and  thus 
cause  this  portion  of  the  State  to  become  an  arid 
desert. 

It  would  seem  that  some  sort  of  interstate  reg- 
ulation is  required.  Nothing  can  be  more  unjust 
or  more  uneconomic  than  the  building  of  ditches 
in  excess  of  the  capacity  of  a  stream  to  fill  them. 
Nothing  is  gained  by  extending  the  irrigated  area 
in  one  section,  when  an  equal  number  of  acres  are 
z  337 


IRRIGATION    INSTITUTIONS 

returned  to  aridity  in  another.  Every  acre  brought 
under  cultivation  beyond  what  the  flow  of  a  stream 
will  serve  means  simply  a  loss  of  money  in  ditches, 
added  burdens  to  the  State  in  supervision,  and 
controversies  and  loss  to  farmers.  There  ought, 
therefore,  to  be  some  limitation  placed  on  the 
diversion  of  water  from  streams,  as  nothing  is 
gained  by  the  building  of  more  ditches  than  a 
stream  can  fill,  and  nothing  does  more  to  cause 
losses  to  farmers  and  contests  between  the  holders 
of  water  rights. 

The  claim  of  Colorado  to  the  complete  use  of 
this  river  is  based  upon  her  right  as  a  sovereign 
and  independent  State  to  make  the  largest  and 
best  use  of  her  resources  in  any  way  which  will 
increase  her  revenue  or  improve  the  moral  or 
material  well-being  of  her  citizens,  without  regard 
to  its  effect  on  the  prosperity  of  States  or  the 
citizens  of  States  below. 

The  court  has  declined  to  pass  on  the  issues 
raised  without  a  better  understanding  of  the  facts. 
The  following  paragraph  from  the  opinion  gives 
the  reasons  for  its  action  :  — 

Sitting,  as  it  were,  as  an  international,  as  well  as  a 
domestic  tribunal,  we  apply  Federal  law,  State  law,  and 
International  law,  as  the  exigencies  of  the  particular  case  may 
demand,  and  we  are  unwilling,  in  this  case,  to  proceed  on  the 
mere  technical  admissions  made  by  the  demurrer.  Nor  do 
we  regard  it  as  necessary,  whatever  imperfections  a  close 
analysis  of  the  pending  bill  may  disclose,  to  compel  its 
amendment  at  this  stage  of  the  litigation.  We  think  proof 
should  be  made  as  to  whether  Colorado  is  herself  actually 
338 


RIPARIAN   AND   INTERSTATE   RIGHTS 

threatened  to  wholly  exhaust  the  flow  of  the  Arkansas  River 
in  Kansas ;  whether  what  is  described  in  the  bill  as  the 
"  underflow "  is  a  subterranean  stream  flowing  in  a  known 
and  defined  channel,  and  not  merely  water  percolating  through 
the  strata  below ;  whether  certain  persons,  firms  and  corpora- 
tions in  Colorado  must  be  made  parties  hereto  ;  what  lands  in 
Kansas  are  actually  situated  on  the  banks  of  the  river,  and 
what,  either  in  Colorado  or  Kansas,  are  absolutely  dependent 
on  water  therefrom;  the  extent  of  the  watershed  or  the 
drainage  area  of  the  Arkansas  River ;  the  possibilities  of  the 
maintenance  of  a  sustained  flow  through  the  control  of  flood 
waters ;  in  short,  the  circumstances,  a  variation  in  which 
might  induce  the  court  to  either  grant,  modify,  or  deny  the 
relief  sought  or  any  part  thereof. 

The  result  is  that  in  view  of  the  intricate  questions  arising 
on  the  record,  we  are  constrained  to  forbear  proceeding  until 
all  the  facts  are  before  us  on  the  evidence. 

Speaking  without  reference  to  the  issue  before 
the  court  the  following  facts  regarding  the  changes 
in  the  flow  of  streams  wrought  by  settlement  seem 
to  be  well  established.  Its  effect  on  the  water- 
supply  of  the  whole  country  has  been  injurious. 
It  has  widened  the  limits  between  floods  and 
drouth :  the  fluctuation  between  high  and  low  water 
has  become  greater  than  it  was  formerly,  not  alone 
in  the  mountain  States,  but  in  the  Mississippi  Valley 
as  well.  It  has  its  causes  in  the  burning  and  cut- 
ting of  timber  on  the  headwaters  of  streams,  the 
removal  of  vegetation,  and  the  trampling  of  live 
stock  on  the  lower  lands.  In  the  Rocky  Moun- 
tains the  tie-chopper  and  the  fires  of  hunters  and 
mountain  campers  have  made  great  inroads  on  the 
forests  which  clothed  their  slopes  and  have  bared 
339 


IRRIGATION   INSTITUTIONS 

the  rocks  which  were  formerly  covered  by  the 
leaves  and  weeds  which  had  fallen  for  centuries 
and  which  acted  as  a  sponge  in  holding  the  rains 
and  snows  which  fell  upon  them.  Below  these 
mountain  summits  and  in  the  foothills,  range  flocks 
and  herds  have  eaten  off  the  grass  and  trampled 
down  the  soil.  Forests,  weeds,  and  grass  are  all 
great  conservers  of  moisture.  Where  once  it  re- 
quired weeks  for  the  rains  and  snows  to  reach  the 
channels  of  streams,  they  now  flow  down  in  a  few 
days  or  a  few  hours.  The  result  is  that  the  moun- 
tain springs  and  the  mountain  rivulets  dry  up  far 
more  rapidly  than  in  former  years,  and  the  great 
rivers  below  suffer  in  turn.  The  lessening  of  the 
water-supply  in  midsummer,  due  to  these  causes, 
is  a  well-known  fact  in  all  the  States  of  the 
Mississippi  Valley.  The  causes  which  produced  it 
are  operating  in  the  mountains  and  are  producing 
the  same  results  in  the  rivers  of  the  arid  region. 

Instead  of  aggravating  this  tendency,  irrigation 
lessens  it,  and  is  thereby  a  benefit  to  both  the  agri- 
cultural and  navigation  interests  on  the  lower 
reaches  of  these  rivers.  The  diversion  of  flood 
waters  works  no  injury  to  any  interest  below.  Irri- 
gation in  the  mountain  States  works  one  impor- 
tant benefit  to  the  arid  and  semi-arid  States  lying 
to  the  east.  It  covers  the  hot,  treeless  plains  with 
foliage  and  vegetation.  The  spreading  of  water 
over  large  areas  cools  the  atmosphere,  increases 
humidity,  and  gives  better  conditions  for  plant 
growth.  It  is  a  well-known  law  that  moisture  is 
340 


RIPARIAN   AND   INTERSTATE   RIGHTS 

never  condensed  where  it  is  formed.  The  water 
evaporated  from  the  irrigated  fields  of  Colorado  is 
nearly  all  carried  toward  Kansas  and  other  States 
to  the  east,  because  that  is  the  prevailing  direction 
of  winds.  While  it  may  not  be  possible  to  measure 
the  increase  in  humidity,  that  irrigation  has  such 
local  influence  is  well  known.  Before  it  began, 
dews  were  not  known  in  Colorado  or  Wyoming. 
They  are  found  now  in  every  irrigated  valley.  If 
there  has  been  no  gain,  irrigation  has  at  least  cor- 
rected an  injurious  tendency  in  another  direction. 
It  mitigates  the  dryness  caused  by  the  destruction 
of  forests  and  vegetation  on  the  mountains. 

Up  to  a  certain  limit  irrigation  on  the  head- 
waters of  a  river  is  a  benefit  to  the  users  of  water 
below.  About  one-third  of  the  water  diverted 
returns  to  the  stream  as  waste  and  seepage.  The 
water  diverted  during  the  flood  season  which  re- 
turns as  seepage  comes  back  slowly  and  helps 
swell  the  stream  when  it  is  low  and  water  is 
most  needed.  The  exact  time  of  the  return  varies, 
of  course,  with  the  location  of  the  lands  irrigated 
and  with  the  character  of  the  soil,  but  in  a  general 
way,  the  effect  of  the  diversion  of  floods  in  irriga- 
tion is  to  equalize  the  flow  of  rivers.  They  carry 
less  water  when  high,  and  more  water  when  low. 
Some  rivers  leaving  the  eastern  slope  of  the  Rocky 
Mountains,  which  formerly  ran  dry  every  year, 
now  have  a  perennial  flow,  and  on  others,  the  point 
at  which  they  each  year  become  dry  is  travelling 
eastward  rather  than  westward. 


IRRIGATION   INSTITUTIONS 

Up  to  a  certain  limit,  the  storage  of  water  also 
tends  to  equalize  the  flow  of  streams.  Reservoirs 
are  filled  when  there  is  an  abundance,  and  the 
water  is  turned  out  when  there  is  a  scarcity. 
Hence,  the  people  who  live  along  streams,  below 
where  the  stored  water  is  used,  derive  an  indi- 
rect benefit  from  the  increased  seepage  thereby 
created.  There  is,  however,  a  limit  beyond  which 
irrigation  on  any  stream  does  not  improve  the  sup- 
ply of  those  living  below.  If  the  irrigated  valley 
is  long  enough,  and  the  irrigated  district  broad 
enough,  the  ultimate  absorption  of  the  water-supply 
is  inevitable. 

In  the  interests  of  truth  and  justice,  and  to  aid 
in  establishing  precedents  which  will  permit  the 
best  and  largest  use  of  Western  resources,  it  is  in 
the  highest  degree  desirable  that  all  the  facts 
which  will  throw  light  on  these  questions  shall  be 
gathered  and  presented  to  the  whole  country,  and 
be  fully  understood  by  the  tribunal  which  must 
ultimately  pass  upon  this  issue.  If  it  shall  be  held 
that  each  State  is  supreme  within  its  own  bounda- 
ries, and  can  provide  for  the  use  by  its  own  citizens 
of  the  entire  water-supply  of  interstate  streams, 
it  will,  of  course,  put  an  end  to  further  litigation 
over  interstate  questions;  but  this  does  not  lessen 
the  necessity  or  diminish  the  value  of  securing  the 
facts  regarding  the  influence  of  irrigation  on  the 
flow  of  streams  and  on  the  rights  of  other  appro- 
priators  of  water  or  riparian  proprietors  below. 
On  the  other  hand,  if  it  shall  be  held  that  those 
342 


RIPARIAN   AND    INTERSTATE   RIGHTS 

who  have  first  used  water  on  the  lower  side  of  a 
State  boundary  are  entitled  to  protection  in  that 
use,  and  that  priority  of  appropriation  shall  be 
enforced  across  State  lines,  then  the  first  step 
toward  legislation  for  such  protection  is  a  correct 
understanding  of  the  facts.  At  present  neither 
the  rights  of  riparian  proprietors  nor  the  interests 
of  navigation  are  clearly  defined.  Both  have  such 
vital  relation  to  the  stability  of  investments  in  irri- 
gation works  that  further  legislation  on  this  ques- 
tion will  in  time  be  inevitable.  The  number  of 
streams  on  which  these  questions  must  be  dealt 
with,  the  extent  of  the  territory  involved,  the  range 
and  intricate  character  of  the  physical  facts,  render 
it  desirable  that  they  should  be  studied  by  trained 
and  impartial  experts,  rather  than  that  the  gather- 
ing of  this  information  should  be  left  to  the  liti- 
gants in  cases  brought  before  the  United  States 
Supreme  Court 


343 


CHAPTER  XIV 

METHODS  AND   MEASURES  NEEDED  FOR  FUTURE 
DEVELOPMENT 

THE  rapid  construction  of  irrigation  works  which 
began  in  1870  continued  for  twenty  years.  Its 
interruption  at  the  end  of  that  time  was  due  to  a 
variety  of  causes,  some  of  which  were  in  no  way 
related  to  the  success  or  failure  of  works  previously 
completed.  Many  of  the  largest  and  costliest 
canals  had  been  built  with  English  and  Scotch 
capital;  the  failure  of  the  Baring  Brothers  in  1889 
cut  off  further  investment  from  that  source.  The 
disastrous  losses  of  range  cattle  in  the  winter  of 
1886-1887,  due  to  overstocking  the  range,  followed 
as  it  was  by  the  low  prices  for  beef,  bankrupted 
many  of  the  individuals  and  firms  engaged  in  this 
industry  and  discouraged  the  further  building  of 
ditches  as  a  means  of  securing  control  of  water 
fronts.  The  years  of  low  prices  which  followed 
the  panic  of  1893  put  an  end  to  immigration  from 
the  East.  Farmers  who  were  barely  able  to  pay 
expenses  in  a  kind  of  agriculture  they  understood 
and  under  climatic  conditions  which  were  familiar, 
had  neither  the  means  nor  the  courage  to  attempt 
the  reclamation  of  unimproved  Western  lands  under 
conditions  which  were  untried  and  by  methods 
344 


METHODS   FOR  FUTURE   DEVELOPMENT 

both  strange  and  new.  The  shrinkage  of  farm 
values  in  the  East  kept  the  owners  of  Eastern 
farms  at  home.  They  could  sell  only  at  a  ruinous 
sacrifice,  hence  they  waited  for  better  times.  The 
owners  of  ditches  built  in  the  later  eighties  had  a 
long  and  costly  wait  for  settlers  after  the  panic  of 
1893  began,  and  the  delay  in  settlement  brought 
in  its  turn  a  shrinkage  in  the  value  of  irrigation 
works  which  discouraged  capitalists  from  attempt- 
ing to  build  others. 

There  were  other  influences  unfavorable  to  irri- 
gation development  which  were  the  direct  out- 
growth of  mistaken  policies.  The  experiences  of 
ditch  companies  which  had  attempted  to  water 
large  areas  of  public  land  showed  that  projects  of 
this  character  could  not  be  made  profitable  until 
the  land  laws  had  been  reformed  in  such  a  way 
as  to  make  speculative  filings  impossible.  The 
Carey  Act,  passed  in  1894,  opened  the  way  for 
this  and  secured  the  construction  of  a  number  of 
important  works  in  Wyoming  and  Idaho,  but  the 
general  financial  distress  which  prevailed  was  too 
great  to  be  overcome.  The  mismanagement  of 
irrigation  districts  under  the  Wright  Law  in  Cali- 
fornia, and  the  business  controversies  which  grew 
out  of  this,  brought  discredit  upon  this  form  of 
cooperation,  although  the  correctness  of  its  prin- 
ciple has  been  very  generally  recognized.  In  other 
States  the  loose  methods  of  appropriating  water 
and  the  abuses  which  grew  out  of  the  recognition 
of  surplus  or  speculative  rights  gave  rise  to  costly 
345 


IRRIGATION    INSTITUTIONS 

and  harassing  litigation,  which  added  a  large 
and  continuous  item  of  expense  to  the  legitimate 
cost  of  irrigation,  and  presented  such  a  serious 
menace  to  the  stability  of  investments  in  irrigation 
properties  that  it  has  both  hampered  enterprise 
and  worked  grievous  injustice  to  users  of  water. 

The  combined  effect  of  all  these  influences  has 
been  to  make  the  years  from  1890  to  the  present 
a  period  of  adjustment.  From  1870  to  1890 
ditch  building  outran  settlement.  From  1890  to 
the  present  the  West  has  been  chiefly  engaged  in 
putting  these  canals  into  use.  Material  progress, 
while  not  so  rapid  as  before,  has  been  continuous 
and  of  a  healthy  character. 

When  the  irrigation  of  the  arid  West  first  began 
its  tendencies  were  generally  selfish  and  largely 
speculative.  Men  thought  only  of  acquiring  own- 
ership of  the  streams  and  getting  possession  of 
all  the  land  possible;  in  other  words,  of  getting 
possession  of  the  country,  not  to  use,  but  to  sell 
again  when  the  user  appeared.  In  one  sense,  the 
tendencies  were  destructive.  Irrigation  is  not 
suited  to  the  bonanza  farm,  and  speculative  land 
filings,  under  which  large  tracts  have  passed  to 
one  owner,  have  done  much  to  retard  the  best 
development  of  the  West,  as  well  as  to  restrict  the 
opportunities  of  the  really  worthy  home-seeker. 
The  wholesale  surrender  of  streams  to  speculative 
appropriators  did  little  to  promote  the  construction 
of  needed  irrigation  works,  but  it  did  place  a 
mortgage  on  those  who  were  to  use  them  afterward. 
346 


METHODS  FOR   FUTURE   DEVELOPMENT 

Until  recently  the  relation  of  irrigation  to  the 
public  welfare  has  received  scant  consideration. 
One  can  search  the  political  platforms  of  the  arid 
States  for  the  past  quarter  of  a  century  without 
finding  more  than  an  occasional  appeal  for  Federal 
aid  in  material  development.  The  vital  issues 
growing  out  of  the  extravagant  grants  of  streams 
and  the  dangers  of  water  monopoly  thereby  created 
apparently  received  no  thought.  There  is  every 
reason  to  be  encouraged  with  the  changes  of  pub- 
lie  sentiment  now  taking  place.  These  dangers, 
so  ably  presented  by  the  late  Major  John  W. 
Powell  in  his  "  Lands  of  the  Arid  Region,"  have 
proven  to  be  real,  and  his  enlightened  recom- 
mendations have  begun  to  bear  fruit.  His  rec- 
ommendations regarding  the  union  of  land  and 
water  have  been  reenforced  by  the  facts  presented 
in  the  recent  reports  of  the  Irrigation  Investigations 
of  the  United  States  Department  of  Agriculture. 
It  is  a  significant  and  encouraging  fact  that  nearly 
every  State  engineer  in  the  arid  States  has  been 
an  active  and  effective  worker  against  the  in- 
fluence of  selfishness  in  acquiring  control  of  the 
water  resources  of  the  West,  and  for  placing 
public  welfare  above  private  interests  in  the  en- 
forcement of  State  laws.  The  purposes  of  the 
West  at  present  are  more  patriotic  and  intelligent. 
It  is  beginning  to  be  realized  that  the  waters  of 
Western  rivers  are  a  great  public  resource  which 
must  be  placed  under  public  control  in  order  to 
protect  the  public  welfare.  In  order  to  do  this, 
347 


IRRIGATION   INSTITUTIONS 

there  must  be  reforms  in  irrigation  laws  and  an 
assertion  of  a  larger  measure  of  public  authority 
than  has  hitherto  been  thought  necessary  or 
desirable. 

For  the  first  time  since  the  settlement  of  the 
West  began,  irrigation  is  not  regarded  as  a  local 
issue.  The  East  has  at  last  become  awakened  to 
the  increase  in  national  wealth  and  power  which 
will  come  from  the  settlement  of  the  irrigable  arid 
lands.  Our  recent  achievements  in  war  and  com- 
merce in  the  Pacific  have  awakened  a  new  interest 
in  the  undeveloped  region  which  separates  the 
settled  and  populous  humid  States  from  the  Pa- 
cific coast,  and  has  stimulated  a  desire  for  its  im- 
provement In  response  to  this  feeling,  the  first 
session  of  the  Fifty-seventh  Congress  passed  an 
act  which  sets  aside  the  proceeds  of  the  sales  of 
public  lands  as  a  fund  for  the  construction  of 
public  irrigation  works.  This  policy  was  recom- 
mended in  the  President's  message  in  an  argument 
of  great  clearness  and  power,  and  the  passage  of 
the  bill  marks  the  beginning  of  a  new  era  in 
Western  development  and  in  governmental  policies 
regarding  irrigation.  It  is,  therefore,  an  appro- 
priate standpoint  from  which  to  review  the  methods 
and  measures  needed  to  secure  the  largest  and  best 
use  of  Western  agricultural  resources  and  for  dis- 
cussing the  intricate  and  complex  questions  which 
must  be  dealt  with  as  a  part  of  this  development. 

The  first  thing  needed  is  a  clear  insight  into  the 
existing  situation.  We  need  to  know  the  nature  of 
348 


METHODS   FOR   FUTURE   DEVELOPMENT 

the  rights  already  vested  and  the  tendencies  of 
the  customs  established  in  order  to  understand 
rightly  the  limitations  which  are  placed  on  future 
action  and  the  direction  which  future  development 
should  take.  It  must  be  borne  in  mind  that  in 
dealing  with  irrigation  we  are  not  confronting  a 
new  issue. 

In  the  last  third  of  the  nineteenth  century  the  arid 
West  became  one  of  the  greatest  irrigated  districts 
on  the  globe.  In  mileage  of  ditches  and  in  acres 
of  land  irrigated  it  surpasses  any  country  of  Europe 
or  Africa  and  is  second  only  to  India  and  China  in 
Asia.  As  has  been  before  stated,  in  this  growth 
construction  outran  settlement,  and  land  and  water 
filings  largely  exceeded  either  the  cultivation  of 
the  soil  or  the  use  of  streams.  The  canals  already 
built  will  serve  twice  as  many  acres  of  land  as 
are  now  being  farmed  under  them.  The  ditches  of 
Idaho  now  water  560,000  acres;  1,500,000  acres  lie 
below  and  await  irrigation  from  them.  The  canals 
and  ditches  of  Colorado  water  about  2,000,000 
acres,  but  they  cover  3,000,000  acres.  Less  than 
half  of  the  land  under  ditches  in  Wyoming  and 
Nebraska  is  being  cultivated.  Of  the  350,000 
acres  under  canals  in  Salt  River  Valley,  Arizona, 
only  125,000  acres  are  being  farmed.  The  same 
conditions  exist  in  other  arid  States  and  Territories. 
In  many  sections  of  the  West,  therefore,  the  first 
need  is  not  more  canals  but  more  settlers  to  culti- 
vate the  lands  already  covered  by  canals.  Great 
landed  properties  need  to  be  broken  into  small 
349 


IRRIGATION    INSTITUTIONS 

farms;  meadows  of  native  hay  and  sage-brush 
pastures  to  be  transformed  into  cultivated  fields. 
One  reason  why  this  change  is  taking  place 
slowly  is  uncertainty  over  water  titles.  The  build- 
ing of  an  irrigation  ditch  too  often  means  for  its 
owners  the  beginning  of  a  large  and  continuous 
outlay  in  controversies  over  water  rights.  Farm- 
ers who  wish  to  live  in  peace  and  who  fear  the 
outcome  of  these  controversies  prefer  to  wait  until 
they  have  been  settled.  They  will  neither  rent 
water  from  the  ditch  company  nor  purchase 
water  rights  from  it,  nor  make  the  expenditures 
required  to  bring  the  irrigable  lands  under  cultiva- 
tion. As  a  result,  both  ditches  and  lands  continue 
unused  or  only  partly  used.  California  has  many 
examples  of  this  form  of  arrested  development. 
Irrigated  land  along  Cache  Creek  is  worth  from 
two  to  three  times  as  much  as  land  not  irrigated, 
but  the  greater  part  of  the  water-supply  runs  to 
waste.  Ditches  which  were  built  years  ago  are 
unused  and  abandoned  because  of  ruinous  litiga- 
tion over  who  owns  the  stream.  The  Central 
Canal  from  the  Sacramento  River,  which  was 
begun  many  years  ago,  remains  unfinished,  al- 
though $576,000  has  been  expended  upon  it  and 
it  is  capable  of  watering  1 50,000  acres  of  very  valu- 
able land.  The  benefits  which  would  come  from 
its  completion  would  be  far  greater  than  the  out- 
lay required,  but  nothing  is  done  because  no  one 
knows  what  sort  of  legal  obstructions  would  be 
encountered  if  the  attempt  to  use  the  river  were 

35° 


METHODS   FOR   FUTURE   DEVELOPMENT 

made.  California  is  not  alone  in  this  respect. 
The  failure  to  provide  for  a  final  and  definite 
establishment  of  water  titles,  and  the  fact  that  the 
complex  issues  regarding  appropriations  must  be 
fought  out  in  the  courts,  have,  in  many  cases,  pro- 
duced a  condition  of  virtual  anarchy  which  has 
stopped  the  growth  of  communities  and  too  often 
caused  the  weak  to  lose  the  results  of  years  of 
effort,  regardless  of  their  merits.  The  failure,  from 
a  financial  and  industrial  standpoint,  of  scores  of 
irrigation  works  has  been  due  to  inadequate  or 
misfit  water  laws. 

Another  reason  why  many  ditches  remain  un- 
used has  been  explained  in  the  chapter  on  land 
laws.  Much  of  the  public  domain  has  been  se- 
cured by  parties  who  do  not  care  to  farm  it  but 
who  hold  it  for  the  rise  in  values  due  to  the  growth 
of  population  and  improvements  made  by  others. 
Neither  ditch  companies  nor  settlers  can  afford  to 
pay  the  prices  asked  for  these  holdings,  which, 
under  a  proper  system  of  land  laws,  would  have 
been  reserved  for  actual  cultivators  of  the  soil. 

A  further  reason  for  delay  in  settlement  is  the 
unfairness  of  some  of  the  earlier  water  contracts, 
under  which  canal  companies  have  tried  to  dispose 
of  water.  These  have  been  discussed  in  a  preced- 
ing chapter.  A  reform  in  these  contracts,  so  that 
all  the  burdens  of  the  uncertainties  of  climate  and 
accidents  will  not  be  placed  on  the  farmer,  will 
do  much  to  create  a  better  feeling  toward  canal 
companies  and  help  them  to  secure  settlers. 
35 1 


IRRIGATION    INSTITUTIONS 

Perhaps  the  chief  reason  for  the  slowness  of 
settlement  is  one  which  is  not  due  to  inadequate 
laws  or  mistaken  policies,  but  to  the  nature  of 
Western  conditions.  Settlement  in  remote  and 
sparsely  peopled  localities  has  been  delayed  be- 
cause of  the  hardships  and  expense  involved  in 
establishing  homes.  In  such  localities  the  cost 
of  living  in  the  first  years  is  great.  Interest  rates 
are  high ;  implements  and  material  of  all  kinds 
are  expensive  because  they  have  to  be  transported 
long  distances.  The  settler  must  build  a  house 
and  fences,  remove  the  sage-brush,  and  grade  the 
land  for  the  distribution  of  water,  and  lay  out  and 
construct  laterals  to  lead  it  over  the  fields.  It  is  a 
rare  exception  when  the  first  crop  grown  on  arid 
land  is  a  success.  Ditches  are  apt  to  break, 
the  fields  are  rarely  in  condition  for  the  proper 
distribution  of  water,  and  under  the  best  conditions 
it  is  hard  to  keep  crops  growing  on  a  soil  and  sub- 
soil which  has  been  parched  for  centuries.  When 
to  all  of  these  expenditures  there  is  added  a  large 
outlay  for  water  rights,  it  brings  the  cost  of  an 
unimproved  farm  on  the  frontier  up  to  that  of 
improved  land  in  the  populous  East.  These  ob- 
stacles are  too  serious  to  be  overcome  by  the 
efforts  of  colonization  agents  and  the  literature 
of  ditch  companies.  Men  of  limited  means  are 
not  able  to  establish  themselves ;  men  who  have 
money  enough  to  succeed  do  not  care  to  incur  the 
hardships  of  pioneer  life  or  the  risks  of  a  new 
industry.  They  can  enjoy  landed  independence 

352 


METHODS   FOR   FUTURE   DEVELOPMENT 

without  it.     The  industry  is  not  fitted,  therefore, 
to  make  homes  for  poor  men,  or  to  furnishing  im- 
mediate returns  on  the  capital  invested  in  irriga- 
tion works.     These   are   among  the   reasons   for  \ 
the  construction  of  irrigation  works  by  the  gov-   ] 
ernment. 

The  largest  bodies  of  irrigable  public  land  and 
the  greatest  opportunities  for  creating  homes  on 
the  public  domain  are  to  be  found  along  the  large 
rivers  in  the  northern  and  central  part  of  the  arid 
region.  Among  these,  the  Big  Horn,  the  Missouri, 
the  Yellowstone,  the  Snake,  the  Grand,  and  the 
Green  are  notable  examples,  although  not  the  only 
ones.  In  the  valleys  of  these  rivers,  large  areas 
await  reclamation  and  settlement.  The  soil  is 
fertile,  the  climate  healthful  and  attractive,  and  all 
the  conditions  are  favorable  except  the  great  cost 
of  works  for  diverting  these  rivers.  Experience 
has  shown  that  it  is  a  losing  investment  for  private 
capital  to  build  these  costly  works,  not  because 
they  do  not  ultimately  pay,  but  because  of  the 
long  delay  in  securing  settlers  for  the  lands  and 
in  bringing  them  under  cultivation.  Moreover, 
the  character  of  these  works  makes  them  an  appro- 
priate field  for  the  expenditure  of  public  funds, 
and  government  aid  in  turn  makes  it  possible  to 
continue  the  liberal  policy  of  the  government  in 
the  disposal  of  its  public  lands. 

The   immense    areas    which    these    dams    and 
canals  will  dominate  renders  it  desirable  that  they 
should  be  under  public  supervision.     The  welfare 
2A  353 


IRRIGATION    INSTITUTIONS 

of  thousands  of  homes  will  be  governed  by  their 
success.  Their  construction  will  open  up  large 
areas  of  land  now  practically  worthless,  and  will 
fford  renewed  opportunities  to  home-seekers.  It 
is  believed  that  these  opportunities  should  be 
i  given  as  far  as  possible  to  men  of  limited  means, 
men  who  have  habits  of  industry  and  economy  and 
but  little  else  with  which  to  establish  themselves. 
Such  men  cannot,  however,  make  needed  im- 
provements and  repay  all  the  outlay  required  for 
these  works.  If  the  giving  of  free  homes,  such 
as  were  secured  in  the  disposal  of  the  public  lands 
of  Iowa  and  Kansas,  is  to  be  continued,  the  water 
from  these  large  canals  should  be  furnished  to 
settlers,  not  at  what  it  costs  to  build  them,  but  at 
what  settlers  can  afford  to  pay.  The  best  plan 
would  be  to  furnish  water  free  of  cost  during  the 
years  when  the  outlay  in  other  directions  is  great- 
est and  leave  the  period  of  repayment  to  the 
future.  Private  capital  cannot  afford  to  do  this. 
The  government  can,  because  of  the  benefits 
which  come  from  the  increase  in  taxable  and  pro- 
ductive wealth  in  which  private  enterprises  do  not 
share. 

Much  of  the  land  under  completed  ditches  is 
not  being  farmed,  because  of  lack  of  water.  As 
a  rule,  this  shortage  is  not  due  to  insufficient  sup- 
ply but  to  its  unfavorable  distribution.  Streams 
which  have  an  abundance  in  May  become  almost 
dry  in  July  and  August.  The  average  flow  of  the 
Arkansas  River  in  June,  1898,  was  2428  cubic 
354 


METHODS   FOR   FUTURE   DEVELOPMENT 

feet  per  second.  In  August  this  had  dropped  to 
326  cubic  feet  per  second.  One  season,  irriga- 
tors  on  the  North  Platte  had  34  times  as  much 
water  in  June  as  in  August.  In  the  first  month 
they  had  far  more  than  they  could  use;  in  the 
second,  more  than  half  of  the  ditches  were  empty. 
For  one  day  in  May,  1901,  the  Poudre  River  car- 
ried 5000  cubic  feet  per  second.  It  not  only  filled 
all  the  ditches,  but  all  its  channel  would  carry  ran 
to  waste.  On  July  6  its  flow  had  fallen  to  631 
cubic  feet  per  second.  One  of  the  ditches  from 
this  river  could  have  diverted  and  utilized  the 
entire  flow. 

With   a   better   understanding   of    the   flow   of 
streams  and  of  the  needs  of   crops  grown  under 
irrigation,  it  has  come  to  be  realized  that  the  regu-  r 
lation  of  the  flow  of  Western  rivers  is  almost  as 
important  as  the  building  of  canals  to  divert  their 
waters.     Farmers  have  learned  that   dependence 
on  a  canal  which  is  empty  half  of  the  season  is 
worse  than  waiting   for  rain  in  a  humid  climate, 
and  it  has  also  come  to  be  understood  that  irriga- 
tion is  an  insurance  against  drouth  only  when  cul- 
tivation  is   restricted   to   the   area  which  can  be  *       i^ 
watered   when   the   supply   is   least.     To  depend  '^JJ*1 
wholly  on  the  natural  flow  of  streams  will  permit 
of  the  best  use  of  only  a  small  part  of  the  water-     Jr 
supply,  because  it  leaves  the  flood  waters  to  run  to 
waste. 

Before  these  facts  were  understood,  the  efforts 
to  utilize  the  high  water-supply  of  the  early  spring 
355 


IRRIGATION   INSTITUTIONS 

led  to  the  construction  of  more  ditches  than  can 
be  filled  and  the  attempt  to  irrigate  more  land  than 
can  be  profitably  or  safely  farmed  without  storage. 
The  scanty  snowfall  in  the  Rocky  Mountains  in 
the  winter  of  1901—1902  has  brought  this  condi- 
tion of  affairs  forcibly  to  the  attention  of  irrigators 
along  the  entire  eastern  slope  of  the  Rocky  Moun- 
tains. Not  only  was  a  large  percentage  of  the 
crops  along  these  streams  ruined  by  drouth,  but 
many  of  the  cities  and  towns  along  their  banks 
found  it  difficult  to  obtain  sufficient  water  for 
domestic  uses.  During  more  than  half  of  the 
irrigation  period,  the  city  of  Denver  had  to  rely  on 
stored  water  for  a  large  part  of  its  domestic  sup- 
ply. If  it  had  depended  wholly  on  the  natural 
flow  of  the  stream,  there  would  have  been  prac- 
tically nothing  left  in  the  South  Platte  River  for 
the  use  of  irrigators.  As  it  was,  many  of  the 
largest  and  costliest  ditches  were  without  water 
during  the  greater  part  of  the  season  and  thou- 
sands of  acres  of  crops  could  not  be  brought  to 
maturity. 

In  recent  years,  almost  as  much  money  has  been 
invested  in  storage  works  as  in  ditches,  and  many 
important  reservoirs  have  been  built  by  private 
capital.  One  of  the  largest  in  the  West  was  com- 
pleted in  Wyoming  in  1901.  In  the  two  years 
ending  December  i,  1900,  the  State  engineer  of 
Colorado  issued  permits  for  the  construction  of  147 
storage  works  and  the  State  engineer  of  Wyoming 
issued  77  of  these  permits.  A  private  reservoir  on 

356 


METHODS   FOR   FUTURE    DEVELOPMENT 

the  Pecos  River  in  New  Mexico  covers  8000  acres. 
The  construction  of  storage  works  has  been  one  of 
the  most  profitable  features  of  recent  irrigation 
.progress  in  Utah.  In  the  latter  State,  nearly  all 
the  surplus  water  of  the  streams  first  used  in  irri- 
gation is  now  being  stored  and  put  to  use.  The 
construction  of  these  works  has  in  most  instances 
proven  exceedingly  profitable  as  an  investment, 
while  the  benefits  derived  therefrom  by  farmers 
can  scarcely  be  appreciated  by  the  outside 
world.  Statistics  show  that  in  many  instances 
the  money  value  of  the  crops  grown  on  irrigated 
land  has  been  increased  by  the  construction  of 
reservoirs  from  50  to  60  per  cent,  and  it  has 
equally  desirable  results  in  other  directions.  In 
many  places  where  settlers  have  to  depend  upon 
the  natural  flow  of  streams,  they  cannot  plant 
shade  or  fruit  trees  because  of  a  failure  of  the 
water-supply  in  midsummer.  Where  trees  have 
been  planted,  they  have  died  for  lack  of  moisture. 
In  such  locations,  reservoirs  have  not  only  enlarged 
the  boundaries  of  irrigation  and  increased  the  yield 
and  value  of  crops,  but  have  worked  a  transforma- 
tion in  the  comfort  and  beauty  of  homes.  Where 
they  are  located  so  as  not  to  menace  the  lives  or 
property  of  people  living  below  them,  or  do  not 
interfere  with  the  natural  flow  of  streams,  there 
does  not  seem  to  be  any  reason  why  this  form  of 
private  enterprise  should  not  be  encouraged,  or 
why  it  may  not  accomplish  great  results  without 
governmental  aid. 

357 


IRRIGATION   INSTITUTIONS 

There  is,  however,  one  class  of  storage  works 
which  have  such  relation  to  the  public  welfare  that 
they  should  be  built  under  public  supervision  and 
perpetually  maintained  and  operated  as  public 
works.  These  are  reservoirs  located  in  the  chan- 
nels of  running  streams.  Such  reservoirs  not  only 
interrupt  the  natural  flow,  but  require  that  the  stored 
water  and  the  water  claimed  by  appropriates 
under  existing  canals  be  mingled  together  in  its 
transit  from  the  place  of  storage  to  the  place  of  use. 
The  division  of  the  water  of  a  river  among  those 
having  rights  thereto  is  always  a  difficult  matter. 
Where  only  the  natural  flow  is  involved,  the  con- 
stant fluctuations  in  volume  and  the  varying  needs 
of  irrigators  render  the  task  of  the  one  responsible 
for  this  division  a  complicated  and  difficult  one. 
Experience  has  shown,  however,  that  when  to  the 
natural  flow  there  is  added  a  stored  supply,  the 
difficulties  of  those  charged  with  its  division  are 
largely  increased. 

The  streams  on  which  storage  works  are  con- 
structed are  also  the  ones  on  which  protection  of 
existing  rights  is  of  unusual  importance.  These 
works  are  not  built  until  there  is  a  shortage  of 
water.  So  long  as  the  stream  will  serve  the  needs 
of  irrigators,  it  is  cheaper  to  take  water  directly 
from  it  than  to  store  it,  and  the  subject  of  reser- 
voirs is  neglected  until  some  one  suffers  from 
drouth.  If,  therefore,  through  a  failure  to  protect 
rights,  some  one  receives  more  water  than  he  is 
entitled  to,  the  surplus  has  to  be  taken  from  some 

358 


METHODS   FOR  FUTURE    DEVELOPMENT 

one  to  whom  it  belongs  and  who  is  in  need  of  it. 
The  holders  of  rights  to  the  natural  flow  of  the 
stream  are  disposed,  therefore,  to  scrutinize  closely 
everything  which  interferes  with  its  division.  The 
construction  of  a  reservoir  in  the  channel  of  a 
stream  inevitably  causes  such  interference,  because 
all  the  water  which  comes  down  from  the  mountains 
has  to  flow  into  it  and  rights  can  only  be  protected 
by  such  regulation  as  will  insure  that  as  much 
water  runs  out  as  flows  in.  Where  these  storage 
works  are  owned  by  private  parties,  there  is  great 
temptation  in  times  of  scarcity  to  hold  back  a  part 
of  the  supply,  and  there  is  equally  great  anxiety 
and  fear  on  the  part  of  irrigators  not  interested  in 
the  reservoir  that  this  will  be  done.  As  reservoirs 
are  frequently  located  in  mountain  districts  remote 
from  the  lands  irrigated,  farmers  cannot  see  what 
is  taking  place,  and  when  there  is  not  water  enough 
to  fill  their  ditches  the  reservoir  is  apt  to  be  held 
responsible  for  the  shortage  and  to  become  a  pro- 
lific source  of  discord.  Some  of  these  private 
reservoirs  have  already  become  public  nuisances 
because  of  the  troubles  which  they  have  created 
over  the  division  of  water. 

The  true  function  of  reservoirs  is  to  act  as 
regulators ;  to  hold  back  the  water  which  would 
otherwise  run  to  waste,  when  it  is  not  needed,  and 
supply  it  to  irrigators  in  times  of  scarcity.  When 
this  is  done,  the  stored  water  will  supplement  that 
which  can  be  taken  by  direct  diversion.  With  some 
irrigators  the  natural  flow  will  supply  nearly  all 
359 


IRRIGATION   INSTITUTIONS 

their  needs ;  stored  water  will  only  be  required  for 
a  brief  period,  —  perhaps  for  a  week,  perhaps 
only  for  a  single  day.  Others  with  later  rights 
in  the  stream  will  have  to  draw  more  largely  on  the 
stored  supply,  but  none  need  rely  entirely  upon  it 
if  streams  are  used  to  the  best  advantage. 

When  President  Roosevelt  said  in  his  first  mes- 
sage that  the  "  water  from  these  reservoirs  should 
be  turned  freely  into  the  channels  in  dry  seasons, 
to  take  the  same  course  under  the  same  laws  as  the 
natural  flow,"  he  announced  the  correct  economic 
policy.  To  carry  it  out  requires  public  reservoirs, 
but  the  value  of  public  reservoirs  hinges  largely  on 
the  faithfulness  with  which  the  policy  which  justi- 
fies their  existence  is  carried  out.  In  order  to 
deliver  stored  water  to  the  proper  ditches  and  pre- 
vent its  being  stolen  by  appropriators  who  have  no 
right  to  it,  public  control  of  streams  is  a  necessity. 
Controversies  and  physical  conflicts  always  arise 
where  such  supervision  is  lacking.  Even  where 
these  reservoirs  are  built  as  private  works,  the 
public  has  to  supervise  the  distribution,  and  in  the 
end  it  makes  this  easier,  simpler,  and  far  more 
satisfactory  to  have  the  public  own  and  operate 
the  reservoirs. 

All  those  who  believe  that  the  only  right  to 
streams  which  should  be  recognized  is  the  right  of 
use,  object  to  private  reservoirs  located  in  the 
channels  of  streams.  Whoever  stores  water  as  a 
private  enterprise  must  in  the  nature  of  things  own 
the  stored  water.  But  if  these  works  are  built  by 


METHODS   FOR   FUTURE   DEVELOPMENT 

the  public,  then  the  doctrine  of  public  ownership 
can  be  maintained  over  the  stored  supply  as  well  as 
over  the  natural  stream,  and  conflicts  over  complete 
public  control  be  averted. 

The  appropriation  of  funds  to  construct  public 
storage  works  has  given  rise  to  some  discussion  as 
to  whether  public  reservoirs  should  supply  water  to 
private  lands,  and  some  have  urged  that  the  water- 
supply  thus  rendered  available  should  be  applied 
exclusively  to  public  land.  To  do  this,  however, 
would  be  a  serious  economic  error.  On  many 
streams  all  the  water  which  can  be  stored  is 
needed  by  the  land  under  existing  ditches  and  in 
private  ownership.  The  settlers  on  these  lands 
were  many  of  them  induced  to  locate  and  make  im- 
provements by  the  abundance  of  water  carried  by 
streams  in  the  flood  season.  Subsequent  expe- 
rience has  shown  that  it  is  the  low-water  and  not 
the  high-water  flow  which  determines  the  area 
which  can  be  safely  brought  under  cultivation,  and 
many  of  the  farms  which  have  been  improved  are 
now  either  not  being  cultivated  at  all  or  are  being 
farmed  under  discouraging  conditions.  Their  own- 
ers have  been  encouraged  to  continue  by  the  hope 
of  an  increased  water-supply  through  the  storage 
of  floods  either  through  private  enterprise  or 
public  aid,  but  if  the  public  construction  of  reser- 
voirs shall  divert  the  stored  water  to  new  lands,  it 
will  not  only  afford  them  no  relief  but,  by  exhaust- 
ing the  reserve  supply,  will  take  away  all  hope  of 
securing  it  in  the  future.  The  carrying  out  of 
361 


IRRIGATION    INSTITUTIONS 

such  a  policy  would  be  both  unjust  and  uneconomic. 
It  would  rob  one  settler  in  order  to  provide  for 
another ;  it  would  return  one  acre  to  aridity  in 
order  to  render  another  fertile;  it  would  involve  a 
large  outlay  in  building  canals  to  reach  new  lands 
and  condemn  the  canals  already  built  to  remain 
unused  or  only  partly  used. 

There  is  greater  need  of  storage  works  to  supply 
private  than  public  lands,  because  wherever  reser- 
voirs are  desired  the  greater  part  of  the  irrigable 
land  has  passed  into  private  ownership.  The 
large  bodies  of  irrigable  public  land  still  awaiting 
reclamation  are  located  along  the  great  rivers  of 
the  West,  where  diversion  and  not  storage  works 
are  the  first  necessity ;  but  where  there  is  a  de- 
mand for  reservoirs,  the  ditches  already  built  and 
the  lands  now  in  private  ownership  will,  in  nearly 
every  instance,  require  all  the  water  which  can 
be  made  available. 

There  is  practically  no  irrigable  public  land  in 
California.  All  the  best  land  is  in  private  hands. 
The  same  is  true  of  Kansas  and  in  a  slightly 
less  degree  of  Nebraska.  When  the  lands  under 
ditches  now  built  have  been  irrigated,  there  will 
be  little  water  remaining  for  public  land  from  the 
streams  which  flow  eastward  from  the  Rocky 
Mountains  in  Wyoming  and  Colorado.  All  of  the 
irrigable  lands  in  Utah  along  the  streams  flowing 
into  Great  Salt  Lake  have  passed  into  private 
ownership.  The  situation  in  Salt  River  Valley, 
Arizona,  has  already  been  referred  to,  and  similar 
362 


METHODS   FOR   FUTURE   DEVELOPMENT 

conditions  prevail  on  nearly  every  stream  where 
irrigation  has  assumed  enough  importance  to  make 
reservoirs  a  live  issue. 

While  in  most  of  the  arid  States  the  government 
owns  a  large  part  of  the  land,  it  has  disposed  of 
the  greater  part  of  its  water  fronts.  There  are 
many  causes  for  this.  The  need  of  a  water- 
supply  has  limited  settlement  to  the  vicinity  of 
streams.  As  has  been  explained  in  a  preceding 
chapter,  water  fronts  are  sought  for  by  range 
stockmen  as  eagerly  as  by  irrigators,  and  they 
have  acquired  them  with  greater  expedition  and  in 
larger  areas.  Three  of  the  transcontinental  rail- 
ways received  grants  of  every  alternate  section  of 
land  for  20  or  40  miles  on  either  side  of  their 
tracks.  These  railway  lines  have,  wherever  pos- 
sible, followed  streams,  and  these  grants  include 
half  of  the  land  along  the  valleys  of  such  rivers 
as  the  Yellowstone,  the  Yakima,  the  Humboldt, 
the  Truckee,  the  Platte,  and  many  others.  The 
arid  States  have  received  grants  of  sections  16 
and  36,  and  in  addition  have  had  special  donations 
which  could  be  located  wherever  the  States  chose. 
A  large  percentage  of  this  land  has  also  been  lo- 
cated along  streams.  In  one  way  and  another, 
therefore,  the  greater  part  of  the  irrigable  land, 
outside  of  the  valleys  of  a  few  large  rivers,  has 
passed  into  private,  corporate,  or  State  ownership, 
and  Federal  aid,  so  far  as  reservoirs  are  concerned, 
will  have  a  very  limited  influence  on  the  irrigation 
of  public  land. 

363 


IRRIGATION    INSTITUTIONS 

The  paramount  need  of  the  West  is  relief  from 
some  of  the  evils  of  the  haphazard  development  of 
the  past,  and  for  the  creation  of  conditions  which 
will  furnish  an  adequate  foundation  for  growth  in 
the  future. 

Foremost  among  these  is  a  common  agreement 
regarding  the  nature  of  titles  to  water.  It  must 
be  settled  whether  rights  are  to  be  limited  to 
needed  and  beneficial  use,  or  streams  are  to  be 
owned  as  personal  property.  It  must  be  settled 
whether  the  common-law  doctrine  of  riparian 
rights  when  recognized  is  to  be  maintained  in  its 
original  form,  or  be  modified  to  meet  Western  con- 
ditions.1 On  many  rivers  the  rights  already 
declared  to  be  vested  amount  to  more  than  the 
whole  volume.  Until  it  is  known  whether  these 
mistakes  are  to  be  perpetuated,  future  diversion 

1  If  it  be  the  unalterable  law  of  this  State  that  an  owner  of  ripa- 
rian land  may,  as  at  common  law,  prevent  any  one  above  him  from 
taking  any  water  out  of  the  stream  for  beneficial  use,  merely  that 
the  stream  shall  flow  past  his  place  undiminished  in  quantity,  and 
whether  such  riparian  owner  can  put  the  water  to  a  beneficial  use 
on  his  land  or  not,  then  no  legislation  that  we  may  suggest,  or  the 
Legislature  enact,  will  materially  relieve  the  situation.  If  that  be 
!  the  law,  and  it  cannot  be  changed  or  modified,  there  is  probably 
il  no  water  in  any  stream  in  the  State  that  can  be  legally  appropriated, 
and  the  right  to  the  use  of  water  that  has  been  appropriated  here- 
''  tofore  has  only  been  acquired  by  the  sufferance  of  riparian  owners 
i  or  their  neglect  to  assert  their  rights.  The  enforcement  of  such  a 
law  would  be  disastrous  in  the  extreme.  The  majority  of  the  Com- 
mission do  not  believe,  if  this  is  the  law  of  the  State,  as  declared  by 
the  Supreme  Court,  that  it  cannot  be  changed  by  the  Legislature. 
—  (From  report  of  Irrigation  Commission  to  Water  and  Poorest  As- 
sociation of  California.) 

364 


METHODS   FOR   FUTURE   DEVELOPMENT 

or  storage  of  water  will  be  uncertain  and  hazard- 
ous. 

The  idea  of  private  ownership  of  water  apart 
from  land  cannot  prevail  without  creating  institu- 
tions essentially  feudal  in  character.  A  water 
lord  is  even  more  undesirable  than  a  landlord  as  a 
dominant  element  in  society,  and  a  proposition  for 
turning  over  all  the  land  to  a  private  monopoly 
and  making  tenants  of  those  who  have  their  homes 
upon  it  could  not  hope  to  command  popular  sup- 
port, but  the  idea  of  private  ownership  of  water, 
amounting  to  a  virtual  monopoly  of  this  vital 
element,  has  been  permitted  to  grow  up  in  the 
West.  It  has  no  place  in  the  irrigation  laws  of 
other  enlightened  countries,  and  in  ours  should  give 
place  to  a  more  enlightened  conception. 

The  doctrine  that  air,  water,  and  sunshine  are 
gifts  from  God  should  not  be  lightly  set  aside  even 
in  arid  lands.  There  is  need  for  adequate  protec- 
tion for  investments  in  canals  and  ditches,  but  this 
can  be  afforded  without  having  the  water  they 
carry  become  private  property  or  the  stream  itself 
become  subject  to  private  ownership.  The  growth 
and  danger  of  monopolies  in  oil,  copper,  coal,  and 
iron  afford  a  warning  of  the  greater  danger  of  per- 
mitting monopolies  in  water.  The  growing  belief 
in  the  public  ownership  of  public  utilities  applies 
especially  to  water,  that  most  essential  of  all  utilities. 

In  monarchies  streams  belong  to  the  crown,  and 
in  the  early  history  of  irrigation  in  Italy  and  other 
parts  of  Europe,  favorites  of  the  rulers  were  re- 
365 


IRRIGATION   INSTITUTIONS 

warded  with  grants  of  streams.  But  in  a  republic 
they  belong  to  the  people,  and  ought  forever  to  be 
kept  as  public  property  for  the  benefit  of  all  who 
use  them,  and  for  them  alone,  such  use  to  be  under 
public  supervision  and  control. 

The  only  right  to  water  which  should  be  recog- 
nized in  an  arid  land  is  the  right  of  use,  and  even 
this  must  be  restricted  to  beneficial  and  economi- 
cal use  in  order  that  the  water-supply  may  serve 
the  needs  of  the  largest  possible  number  of  people. 
Ownership  of  water  should  be  vested,  not  in  com- 
panies or  individuals,  but  in  the  land  itself.  When 
water  rights  are  attached  to  land,  the  needs  of 
crops  are  always  a  sure  measure  of  beneficial  use. 
When  rights  are  made  personal  property,  benefi- 
cial use  becomes  simply  a  legal  fiction.  Attaching 
rights  to  land  divides  the  control  of  streams  like 
the  ownership  of  land  among  a  multitude  of  pro- 
prietors. Reservoirs  and  canals  are  then  like  the 
streets  of  a  town,  serving  a  public  purpose.  Water 
monopoly  is  impossible  without  land  monopoly  and 
no  other  abuse  is  fostered  by  it.  Years  of  painful 
experience  have  abundantly  proven  that  peaceful 
and  orderly  development  cannot  be  realized  except 
as  water  and  land  are  forever  united  in  one 
ownership.1  The  adoption  of  this  principle  in 

1  In  the  arid  States  the  only  right  to  water  which  should  be  rec- 
ognized is  that  of  use.  In  irrigation  this  right  should  attach  to  the 
land  reclaimed  and  be  inseparable  therefrom.  Granting  perpetual 
water  rights  to  others  than  users,  without  compensation  to  the 
public,  is  open  to  all  the  objections  which  apply  to  giving  away 

366 


METHODS   FOR   FUTURE   DEVELOPMENT 

Wyoming  and  Nebraska  and  its  enforcement  by 
the  State  boards  of  control  has  been  attended  with 
the  best  results.  If  it  can  be  maintained  and  ex- 
tended to  the  other  States,  it  will  mark  an  eco- 
nomic reform  of  the  highest  significance  in  the  life 
of  the  West. 

These  limitations  on  water  rights  would,  it  is  be- 
lieved, benefit  the  owners  of  canals  as  greatly  as 
the  cultivators  of  irrigated  land.  The  doctrine  of 

perpetual  franchises  to  the  public  utilities  of  cities.  —  (President 
Roosevelt's  Message  to  Congress,  December  3,  1901.) 

A  recognition  of  the  danger  of  allowing  water  to  be  monopolized    (. 
without  regard  to  the  land  has  led  a  commission  appointed  to  in-    f 
quire  into  California  irrigation  to  declare  that "  as  a  matter  of  pub- 
lic policy  it  is  desirable  that  the  land  and  water  be  joined  never  to 
be  cut  asunder ;  that  the  farmers  should  enjoy  in  perpetuity  the 
use    of  the  water  necessary  for  the  irrigation  of  their  respective 
lands  ;   that  when  the  land  is  sold  the  right  to  water  shall  also  be 
sold  with  it,  and  that  neither  shall  be  sold  separately."  —  (Australian 
Report  on  American  Irrigation.) 

Italian  experience,  French  experience,  and  Spanish  experience, 
all  go  to  show  that  the  interests  to  be  studied  in  relation  to  irriga- 
tion schemes  are  so  many  and  so  various,  and  so  intimately  bound 
up  with  the  public  welfare,  that  State  control  is  imperatively  neces- 
sary, and  that  for  the  protection  of  its  citizens  no  monopoly  can  be 
permitted  which  would  separate  property  in  water  from  property  in 
the  land  to  which  it  is  applied.  —  (Fourth  Progress  Report,  Royal 
Commission  on  Water  Supply,  Victoria,  Australia.) 

European  experience  shows  .  .  .  that  where  waters  belonging  to 
the  State  are  farmed  and  relet  by  private  individuals  water  rights 
are  a  constant  source  of  gross  injustice  and  endless  litigation.  The 
consequence  of  these  interminable  vexations  is  that  the  poorer  or 
more  peaceably  disposed  landholder  is  obliged  to  sell  his  posses- 
sions to  a  richer  or  more  litigious  proprietor,  and  the  whole  district 
gradually  passes  into  the  hands  of  a  single  holder.  —  (G.  P.  Marsh, 
formerly  United  States  minister  to  Italy.) 

367 


IRRIGATION   INSTITUTIONS 

personal  ownership  of  water  has  made  those  who 
have  appropriated  it  to  rent  or  sell,  trustees  or 
agents  for  users,  and  thrust  on  them  all  of  the  ex- 
pense of  fighting  rival  appropriators  in  the  fields 
and  in  the  courts.  It  incites  every  irrigator  to  re- 
bellion because  he  feels  that  the  doctrine  which 
gives  the  stream  to  the  man  who  diverts  it,  and 
denies  all  rights  to  the  one  who  uses  it,  makes  him 
the  victim  of  an  unjust  discrimination. 

So  long  as  ditch-owners  are  the  appropriators  of 
water  they  have  to  maintain  a  dual  conflict.  They 
must  strive  with  other  appropriators  for  control  of 
the  stream  and  with  their  customers  over  the  quan- 
tity and  price  of  the  water  they  furnish.  On  the 
other  hand,  where  ditches  are  made  carriers  of 
water  and  rights  in  streams  attach  to  the  land,  the 
burden  of  the  struggle  over  a  fair  division  does  not 
fall,  as  it  now  does,  solely  on  the  owners  of  canals. 
The  farmer  thus  ceases  to  look  to  his  water  con- 
tract with  a  company,  but  to  the  laws  of  the  State 
for  protection  in  times  of  shortage. 

Where  appropriations  attach  to  land,  canal  own- 
ers have  no  responsibility  except  to  deliver  what 
comes  to  the  head-gate.  For  this  service  they  are 
entitled  to  fair  compensation,  and  they  come  nearer 
receiving  it  in  States  where  the  farmer  has  to  pro- 
tect his  own  water  right  than  they  do  in  States 
where  the  ditch-owner  is  the  appropriator  and 
rates  are  fixed  by  boards  of  supervisors  and  county 
commissioners  under  conditions  which  make  prac- 
tical confiscation  of  investments  more  than  possible. 
368 


METHODS   FOR   FUTURE    DEVELOPMENT 

Whatever  may  be  the  opportunities  of  private  ] 
ownership  of  water  in  the  future,  it  has  not  thus  far 
in  this  country  worked  to  the  benefit  of  ditch  com- 
panies. On  the  contrary,  it  is  believed  to  be  the 
greatest  evil  with  which  they  have  to  contend.  It 
has  been  a  potent  source  of  hostile  public  senti- 
ment and  the  origin  of  both  expensive  litigation 
and  retributive  legislation. 

There  is  the  same  need  for  public  control  over 
streams  that  there  is  for  government  control  over 
public  land.  There  is  the  same  need  for  the  State 
engineer's  office  in  every  arid  State  to  direct  the 
diversion  of  streams  that  there  is  for  land  offices  to 
supervise  filings  on  public  lands.  We  cannot  go 
on  in  the  future  as  we  have  in  the  past,  leaving 
water  to  be  filed  upon  without  limit,  used  without 
definite  regulation,  and  leaving  titles  to  its  future 
ownership  to  be  settled  in  the  courts  by  ordinary 
suits  at  law. 

The  experience  of  every  arid  State  has  shown 
that  trouble  always  results  when  it  is  left  to  rival 
users  to  determine  the  nature  of  their  rights.  Irri- 
gation more  than  all  other  industries  demands  pub- 
lic supervision  and  control.  Every  drop  of  water 
entering  a  ditch,  every  drop  escaping  at  the  end  of 
a  canal,  is  a  matter  of  public  concern.  The  public 
must  determine  through  constitutions  and  statutes 
the  nature  of  water  ownership.  The  public  must 
establish  means  for  the  measurement  of  streams 
and  for  ascertaining  how  much  water  may  be  taken 
for  each  acre  of  land  under  the  principle  of  benefi- 
2B  369 


IRRIGATION    INSTITUTIONS 

cial  use.  The  public  must  see  that  justice  is  done 
in  the  distribution  of  water  among  those  who  have 
properly  established  their  claims  to  it.  We  have 
thoroughly  tried  leaving  all  these  to  private  initia- 
tive and  management  and  along  with  magnificent 
material  progress  we  have  reaped  a  large  crop 
of  deplorable  results.  In  order  to  have  this  con- 
trol just  and  effective,  it  must  be  administered 
by  men  who  have  made  a  special  study  of  the 
subject,  and  these  men  must  be  given  exclusive 
jurisdiction. 

Irrigation  administration  has  thus  far  been  ham- 
pered by  the  prevailing  practice  of  leaving  the 
final  settlement  of  practically  every  question  to 
the  courts.  While  there  are  certain  questions 
which  must  always  be  left  to  judicial  settlement, 
we  are  leaving  far  too  much  to  litigation  at  pres- 
ent. The  party  who  files  on  a  homestead  must 
make  his  proof  in  a  United  States  land  office.  He 
cannot  go  to  the  courts  for  a  patent.  If  he  could, 
demoralization  in  land  matters  would  be  prompt 
and  certain.  In  the  same  way,  to  make  adminis- 
tration of  streams  effective,  those  having  charge  of 
this  administration  must  be  given  adequate  author- 
ity. If  parties  can  elect  whether  they  will  settle 
their  rights  in  the  courts  or  before  an  irrigation 
tribunal,  the  creation  of  the  tribunal  will  be  worse 
than  useless.  Suppose  there  are  ten  claims  to 
water  from  a  stream.  If  nine  claimants  elect  to 
have  rights  settled  before  the  irrigation  tribunal 
and  one  goes  into  court,  there  will  be  two  sets  of 
370 


METHODS   FOR   FUTURE   DEVELOPMENT 

rights  and  unending  complications  as  a  result.  A 
double  jurisdiction  over  streams  is  no  more  pos- 
sible than  is  the  operation  of  a  railroad  with  two 
presidents  to  direct  its  policy. 

In  order  to  have  a  just  determination  of  rights, 
it  is  necessary  to  have  them  based  on  a  correct 
knowledge  of  physical  facts.  Before  it  can  be 
settled  how  much  water  has  been  appropriated,  it 
must  be  known  how  much  water  a  stream  carries. 
Before  any  one  can  decide  how  much  water  has 
been  beneficially  used,  the  location  and  extent  of 
the  land  irrigated  must  be  known  and  there  must 
be  an  approximate  determination  of  the  duty  of 
water.  Before  any  rights  to  a  stream  are  estab- 
lished, all  the  uses  of  water  from  it  should  be 
determined  by  some  public  authority  and  the  re- 
sults of  these  measurements  given  the  widest  pub- 
licity in  order  that  all  interested  may  know  how 
much  is  being  used  and  how  much  remains  to  be 
used  hereafter.  The  need  of  this  information  is 
so  obvious  that  it  is  difficult  for  those  unfamiliar 
with  the  subject  to  credit  the  assertion  that  in  all 
but  four  of  the  Western  States  this  matter  has  been 
wholly  neglected. 

After  rights  are  defined,  they  should  be  pro- 
tected. This  cannot  be  left  to  appropriators 
themselves.  Peace  and  security  can  only  be 
assured  to  the  millions  of  irrigators,  who  are  to 
fill  Western  valleys,  by  having  such  a  system  of 
administration  as  will  assure  each  user  of  water 
that  he  will  receive  his  just  share  of  the  supply,  no 


IRRIGATION    INSTITUTIONS 

matter  how  far  from  the  mountain  snows  his  farm 
may  be  situated. 

Success  in  this  administration  requires  that  the 
valleys  of  rivers  and  their  tributaries  must  be 
divided  up  into  districts  of  convenient  size,  the 
boundaries  of  which  shall  be  based  on  drainage 
lines.  These  districts  should  constitute  separate 
independent  political  divisions  of  each  arid  State. 

If  possible,  the  limits  of  State  and  Federal  juris- 
diction should  be  more  clearly  defined.  It  has 
heretofore  been  assumed  that  the  authority  of  each 
State  in  the  disposal  of  the  water-supply  within  its 
borders  was  unquestioned  and  supreme,  and  two 
of  the  States  have  constitutional  provisions  as- 
serting absolute  ownership  of  all  water-supplies 
within  their  bounds.  A  recent  decision  of  the 
United  States  circuit  court  holds  this  view  to  be 
erroneous,  and  in  other  litigation,  the  decisions 
have  been  of  such  a  character  as  to  give  rise  to 
grave  uncertainty  as  to  what  is  to  be  the  ultimate 
settlement  of  this  issue. 

There  is  further  need  of  legislation  on  this  ques- 
tion because  of  the  serious  complications  which 
have  arisen  from  the  absence  of  any  national 
law  or  regulation  concerning  the  division  of  water 
across  State  lines.  There  are  many  instances 
where  one  stream  is  a  source  of  supply  for  irri- 
gators  in  two  or  more  States.  It  is  beginning 
to  happen  that  the  perennial  flow  of  these  streams, 
which  was  first  appropriated  in  the  State  along  its 
lower  course,  has  been  utilized  at  a  later  period  by 
372 


METHODS   FOR   FUTURE   DEVELOPMENT 

irrigators  in  the  State  above.  Neither  of  the  States 
concerned  possesses  power  to  remedy  the  injury 
which  results  and  each  makes  claim  to  all  the 
water  flowing  upon  its  soil.  Owing  to  each  State 
having  been  left  to  legislate  on  this  question  inde- 
pendently of  its  neighbors,  the  water  rights  in 
adjacent  States  are  in  some  instances  as  different  i 
in  character  as  if  these  commonwealths  were  on 
opposite  sides  of  the  globe.  The  complications 
created  by  these  differences  aggravate  the  evils 
and  render  the  adoption  of  regulations  for  the 
division  of  interstate  supplies  far  more  difficult. 
This  does  not  mean,  however,  that  a  solution  is 
impossible,  but  it  does  require  that  the  means  to 
be  employed  should  receive  early  and  careful 
study. 

Thus  far,  rights  to  water  in  all  of  the  Western  D^L^rf* 
States  and  Territories  have  been  made  free  and  j 
perpetual,  and  it  has  been  urged  that  the  policy  I 
under  which  the  natural  flow  of  streams  has  been 
disposed  of  should  be  extended  to  the  water  stored 
in  public  reservoirs.  Those  who  urge  the  adoption 
of  this  policy  justify  it  on  the  ground  that  the 
results  which  will  come  from  the  cultivation  of 
the  soil  thus  rendered  productive  will  more  than 
justify  the  outlay.  It  is  pointed  out  that  the  gov- 
ernment has  constructed  reservoirs  at  the  head 
of  the  Mississippi  for  the  benefit  of  navigation, 
and  it  is  insisted  that  there  are  equal  reasons  for 
performing  a  like  work  on  the  headwaters  of  the 
Missouri  for  the  benefit  of  agriculture ;  that  since 
373 


IRRIGATION    INSTITUTIONS 

the  first  is  done  without  charge,  the  other  should 
be.  There  is,  however,  one  feature  in  the  improve- 
ment for  the  benefit  of  commerce  which  is  lacking 
in  the  construction  of  irrigation  works  for  the  ex- 
tension of  agriculture.  All  who  wish  to  navigate 
a  river  or  harbor  may  do  so,  but  all  the  owners  of 
land  along  a  stream  cannot  share  in  the  waters  of 
a  reservoir.  Hence,  if  the  water  from  public  works 
is  made  wholly  free,  the  owners  of  arid  land  who 
are  cut  off  from  the  supply  will  have  just  cause 
for  complaint,  as  will  those  who  build  and  main- 
tain storage  works  at  their  own  expense.  The 
argument  in  favor  of  such  liberality  would  have 
added  weight  if  all  the  rights  to  water  now  recog- 
nized were  attached  to  the  land  and  limited  to  its 
need,  but  the  fact  that  in  a  majority  of  the  Western 
States  rights  to  water  are  personal  property  and 
are  being  bought  and  sold  like  any  other  kinds  of 
property,  is  not  only  an  argument  against  such 
a  policy  in  connection  with  government  works  but 
raises  the  question  as  to  whether  or  not  all  the 
water  used  should  not  be  charged  for. 

One  of  the  great  needs  of  Western  irrigators  to- 
day is  more  efficient  public  control  of  streams  and 
better  protection  of  existing  rights,  and  the  great- 
est obstacle  to  securing  this  is  the  difficulty  of 
securing  sufficient  funds  to  pay  for  this  ser- 
vice. It  would  be  an  immeasurable  gain  to  the 
public  if  all  the  water  diverted  could  be  charged 
for  and  the  money  thus  collected  be  used  to  pay 
for  better  administration.  The  collection  of  such 
374 


METHODS   FOR  FUTURE   DEVELOPMENT 

rentals  would  also  have  an  educational  influence 
of  no  mean  value.  It  would  place  public  owner- 
ship of  streams  before  irrigators  in  a  form  to  be 
understood.  At  present,  to  the  great  body  of 
water  users,  the  doctrine  of  public  ownership  is 
a  mere  abstraction.  Appropriations  are  made 
without  regulation  and  streams  are  diverted  with- 
out supervision,  and  those  who  use  them  believe 
that  what  they  so  completely  control  belongs  to 
them.  But  if  a  rental  were  paid  to  the  public, 
no  matter  how  small,  it  would  show  that  the  pub- 
lic and  not  the  appropriator  was  the  owner  of  the 
stream. 

The  plan  of  charging  a  rental  for  the  water  fur- 
nished could  also  be  made  to  work  well  in  the 
operation  of  public  reservoirs.  These  should  not 
displace  but  supplement  the  use  of  water  taken 
directly  from  the  streams.  When  there  is  an 
abundance  of  water,  the  reservoir  should  not  be 
drawn  upon,  but  its  water  should  be  held  until 
ditches  cannot  be  filled  from  the  natural  flow. 
Under  this  plan  an  acre  of  land  will  be  watered 
during  part  of  the  season  from  the  stream  and 
during  the  remainder  from  the  reservoir. 

No  plan  for  doing  this  is  so  simple  or  promises 
to  be  so  effective  in  promoting  economy  as  to 
charge  for  the  quantity  received,  making  the  rate 
for  stored  water  higher  than  for  the  natural  flow, 
and  thus  make  the  cost  to  irrigators  an  induce- 
ment for  thrift  and  saving. 

The  time  has  also  come  for  considering  whether 
375 


IRRIGATION   INSTITUTIONS 

or  not  grants  of  water  should  be  made  perpetual. 
Some  of  the  foremost  irrigated  countries  of  Europe 
treat  these  rights  as  franchises  and  limit  their  dura- 
tion to  fifty  or  ninety-nine  years.  Such  franchises 
would  serve  every  useful  purpose  of  a  grant  in 
perpetuity  and  might  save  future  generations  from 
large  outlays  in  the  condemnation  of  vested  rights, 
should  such  action  be  found  desirable.  The  ten- 
dency in  cities  toward  municipal  ownership  of  pub- 
lic utilities  will,  it  is  believed,  extend  in  time  to  the 
municipal  ownership  of  canals  and  reservoirs,  and 
the  policy  of  cities  in  limiting  franchises  may  well 
be  extended  to  legislation  controlling  appropriations 
of  the  public  waters.  The  liberality  of  the  earlier 
years  of  this  industry  is  only  a  reflection  of  the 
early  policy  of  cities,  where  the  grant  of  free  and 
perpetual  franchises  was  not  looked  upon  with  any 
particular  disfavor.  The  objection  to  perpetual 
rights  in  streams  has  been  well  stated  in  the  fol- 
lowing extract  from  Baird  Smith's  "  History  of 
Irrigation  in  Italy":  — 

A  grant  in  perpetuity  of  such  a  material  as  water,  whose 
value  must  necessarily  go  on  augmenting  with  the  progress 
of  agricultural  irrigation,  is  an  act  of  injustice  toward  the 
government.  .  .  . 

For  there  is  no  point  better  established  by  experience  in 
northern  Italy  generally,  and  in  Lombardy  particularly,  than 
this,  that  the  selfishness  of  grantees  in  perpetuity  of  water 
has  been  one  of  the  most  serious  obstacles  to  the  develop- 
ment of  irrigation.  Acting  on  the  principle  that  they  had  a 
right  to  do  what  they  liked  with  their  own.  they  were  in  the 
habit  of  suspending  arbitrarily  the  supplies  of  water  disposed 
376 


METHODS   FOR   FUTURE   DEVELOPMENT 

of  by  them  to  other  parties  under  subordinate  grants,  of  in- 
creasing as  they  thought  fit  the  prices  to  be  paid,  and,  in  a 
word,  of  pushing  to  its  utmost  limits  the  right  of  absolute 
property  purchased  by  them  from  the  State.  But  an  agricul- 
ture founded  on  artificial  irrigation  cannot  advance  as  it  ought 
to  do  under  such  an  arbitrary  system. —  (Vol.  II,  pp.  137  and 
138.) 

The  holders  of  ancient  grants  in  perpetuity  have  occasion- 
ally asserted  an  absolute  right  of  property  in  the  water  thus 
granted  to  them,  but  the  legal  tribunals  have  invariably  re- 
jected such  claims  on  the  ground  that  the  grants  were  made 
for  the  general  good  of  the  country  as  much  as  the  special 
advantage  of  the  grantees.  —  (Vol.  II,  p.  259.) 

There  is  every  reason  to  believe  that  far-reaching 
changes  in  the  irrigation  systems  of  the  West 
must  occur  in  the  near  future.  The  present  con- 
ditions cannot  continue.  The  growing  demand 
for  water  for  irrigation  purposes,  the  greater  needs 
of  cities  and  towns  for  domestic  uses,  the  growing 
value  of  water  in  the  generation  of  power,  are 
rendering  it  more  and  more  desirable  that  there 
should  be  some  simple  and  final  method  of  deter- 
mining and  protecting  rights  to  streams.  Thus 
far,  all  these  questions  have  been  settled  under 
State  laws  and  by  the  decisions  of  State  courts. 
Undoubtedly,  there  will  be  in  the  future  a  larger 
exercise  of  Federal  authority  in  the  division  of 
streams  across  State  lines,  but  this  need  not  in- 
volve any  interference  with  local  customs  and 
local  regulations  within  a  State.  Where  a  stream 
flows  from  one  State  into  another,  the  Federal 
authorities  can  determine  how  much  of  the  water- 
377 


IRRIGATION   INSTITUTIONS 

supply  belongs  to  the  lower  State  and  may  require 
the  State  officials  to  so  regulate  head-gates  as  to 
permit  this  volume  to  flow  down.  This  can  be 
done  in  such  a  way  as  to  leave  it  to  the  State 
officials  to  determine  which  head-gates  shall  be 
closed  and  what  rights  shall  be  protected  in  the 
use  of  the  water  to  which  either  the  upper  or  lower 
State  is  entitled.  It  is  in  every  way  desirable 
that  there  should  be  no  greater  interference 
with  local  control  than  is  absolutely  necessary. 
The  wide  difference  in  local  customs  and  local 
conditions  renders  it  impossible  that  a  general 
law  should  everywhere  work  equally  well  and 
makes  it  desirable  that  each  State  should  de- 
velop along  lines  best  suited  to  its  environment. 
In  most  valleys  the  division  of  water  among 
irrigators  is  as  much  a  local  matter  as  the  munici- 
pal regulations  of  cities  and  towns.  The  people 
who  live  there  understand  their  water-supply,  the 
needs  of  the  land,  and  the  local  peculiarities  of 
soil  and  climate.  It  would  be  unscientific  and 
in  the  highest  degree  unfortunate  if  the  principle 
of  local  self-government,  on  which  this  nation  is 
founded,  and  the  opportunity  to  exercise  self-reli- 
ance and  self-control,  which  has  done  so  much 
for  its  manhood  in  the  past,  should  be  taken 
away  from  the  irrigators  of  the  West  by  the 
transfer  of  the  local  regulation  of  streams  to 
some  centralized  bureau.  It  is  believed  that 
Secretary  Wilson  of  the  United  States  Depart- 
ment of  Agriculture  in  his  last  report  outlined 

378 


METHODS  FOR   FUTURE   DEVELOPMENT 

the  policy  which  should  govern   future  develop- 
ment when  he  said  :  — 

Reform  in  irrigation  laws  will  only  be  final  and  satisfactory 
when  it  comes  through  the  enlightenment  of  the  people  most 
concerned.  In  a  matter  so  vitally  affecting  the  home  as  the 
control  of  the  water-supply,  no  legislation  will  be  effective 
which  has  not  the  sanction  of  the  irrigators  themselves. 

As  has  been  shown,  the  differences  in  State  laws 
are  fundamental.  A  national  law  would  disturb 
local  usages  and  customs  to  which  communities  are 
wedded  and  which  irrigators  understand.  Not- 
withstanding the  mistakes  which  have  been  made 
in  the  past,  it  is  believed  that  framing  irrigation 
laws  should  continue  to  be  the  work  of  State 
legislatures.  Leaving  it  to  the  people  of  the 
several  States  to  solve  these  issues  is  leaving  it  to 
those  most  interested  in  the  success  of  this  industry 
and  hence  to  the  highest  intelligence  which  can  be 
enlisted. 

But  the  best  use  of  Western  resources  requires 
more  than  a  reform  of  water  laws.  Other  ques- 
tions besides  the  ownership  and  division  of  streams 
need  the  earnest  and  thoughtful  consideration  of 
all  who  are  interested  in  the  western  third  of  this 
country.  The  speculative  filings  on  public  land 
should  come  to  an  end.  The  forests  which  clothe 
the  mountain  tops  must  be  saved  from  destruction. 
Inroads  by  fire  and  axe  have  not  only  caused  a 
wanton  and  needless  waste  of  property  of  great 
value,  but  have  lessened  the  available  water-supply 
and  seriously  curtailed  the  number  of  acres  irri- 
379 


IRRIGATION   INSTITUTIONS 

gated  in  many  Western  valleys.  The  decay  of 
agriculture  in  southern  Spain  began  with  cutting 
the  timber  from  the  Pyrenees,  and  with  the  re- 
moval of  the  mountain  forests  of  Palestine  went 
not  only  the  ruin  of  agriculture  in  that  country, 
but  the  decadence  of  the  nation  itself.  The  future 
of  the  West  will  be  largely  influenced  by  measures 
taken  to  perpetuate  the  mountain  forests.  Only 
second  in  importance  to  the  forests  is  the  preserva- 
tion of  the  scanty  but  nutritious  grasses  in  the 
valleys.  The  importance  of  the  grazing  land  as  a 
factor  in  irrigation  development  ought  not  to  be 
longer  overlooked.  Measures  should  be  adopted 
which  will  unite  the  use  of  the  grazing  and  irri- 
gable lands  and  in  this  way  help  to  extend  the 
boundaries  of  the  habitable  area.  The  legislation 
of  the  last  Congress  should  be  supplemented  by 
laws  for  better  use  of  the  grazing  lands.  The 
measure  introduced  in  Congress  by  Senator  F.  E. 
Warren,  of  Wyoming,  in  1892,  which  provided  for 
the  union  of  land  and  water,  for  the  classification 
of  the  public  lands  into  irrigable,  grazing,  and 
forest  areas  through  a  comprehensive  economic 
survey,  and  for  the  location  of  ditches  according 
to  a  prearranged  plan  having  for  its  object  the 
most  economical  use  of  the  water-supply  would,  if 
adopted,  have  saved  to  irrigators  many  water  fronts 
which  have  now  passed  into  the  hands  of  specu- 
lators. 

The   West  needs,   as    never    before,   to   study 
methods    of    social    organization    and   to    develop 
380 


METHODS   FOR   FUTURE   DEVELOPMENT 

plans  for  cooperation.  The  need  of  watering 
many  farms  from  a  common  source,  and  of  organ- 
izing communities  for  the  distribution  of  water 
under  fixed  rules  and  discipline,  makes  irrigation 
a  nursery  of  cooperation.  Its  influence  has  been 
manifest  in  the  tendency  of  Western  communities 
toward  cooperative  organizations  of  an  industrial 
character,  of  which  the  fruit  exchanges  of  Califor- 
nia and  the  potato  exchanges  of  Colorado  are 
typical  examples.  That  the  principle  of  coopera- 
tion in  irrigation  is  sound,  is  shown  by  the  success 
of  cooperative  ditches,  which  are  everywhere 
maintained  with  less  friction  and  operated  at  less 
cost  than  are  canals  controlled  by  others  than  the 
owners  of  the  irrigated  land ;  but  cooperation,  in 
many  instances,  should  be  extended  beyond  the 
ditch  to  the  control  of  the  stream,  and  should  be 
fostered  by  proper  legislation.  It  is  believed  that 
the  irrigation  district  acts  of  Colorado  and  Idaho 
furnish  a  safe  working  basis  for  the  cooperative 
ownership  and  management  of  ditches,  and  that 
irrigation  on  many  streams  in  these  States  will  in 
time  be  organized  in  accordance  with  their  pro- 
visions. These  acts  not  only  make  new  develop- 
ment possible,  but  provide  a  convenient  means  for 
the  transfer  of  canals,  built  as  corporation  enter- 
prises, to  the  ownership  and  control  of  the  farmers 
who  use  them.  The  Colorado  irrigation  district 
act  has  been  made  use  of  in  combining  under 
one  management  a  number  of  rival  and  conflict- 
ing appropriations  from  the  same  stream,  with  a 
381 


IRRIGATION   INSTITUTIONS 

lessening  of  friction  between  water  users  and 
greater  economy  in  the  use  of  water,  and  lessened 
cost  in  the  management  of  ditches.  The  Wyo- 
ming law  accepting  the  Carey  grant  makes  cooper- 
ation obligatory.  The  canal  must  be  owned  and 
operated  by  the  settlers  who  secure  the  lands 
below  it.  Every  settler  becomes  a  part  owner 
in  the  canal  and  the  water  right  attaches  to  the 
land,  the  canal  being  simply  a  carrier. 

Heretofore,  one  of  the  evils  of  the  irrigated 
home  has  been  its  isolation.  The  valleys  of  many 
streams  are  narrow.  The  broad  areas  which  lie 
between  are  the  home  of  cattle  and  sheep  but  not 
of  man.  The  Anglo-Saxon  thirst  for  land,  and  the 
opportunity  to  gratify  it,  has  resulted  in  many  in- 
stances in  a  wide  separation  between  homes  and 
in  a  loss  to  settlers  of  needed  advantages  in  the 
way  of  schools,  churches,  and  social  life.  The 
present  tendency  is  in  the  other  direction.  In 
the  older  settled  irrigated  districts,  the  large  es- 
tates are  being  broken  up  and  land  is  being  divided 
up  into  small  holdings.  This  is  so  because  irriga- 
tion is  best  suited  to  intensive  farming,  to  the 
cultivation  of  crops  which  need  the  intelligence 
and  personal  interest  of  the  man  who  is  tilling  his 
own  soil  and  working  in  his  own  behalf. 

In  some  parts  of  the  West  the  European  custom 
of  grouping  homes  in  farm  villages,  which  was 
brought  to  this  country  by  the  emigrants  to  Utah, 
has  grown  in  popular  favor.  Where  farmers  live 
in  villages,  they  are  able  to  realize  a  happy 

382 


METHODS   FOR   FUTURE   DEVELOPMENT 

combination  of  town  and  country  life,  and  to  dwell 
under  conditions  which  are  favorable  to  a  growth 
of  the  best  forms  of  civilization.  The  realization 
of  this  is  well  worth  the  struggle  which  is  now 
going  on  for  the  reform  of  our  land  and  water 
laws  —  a  struggle  which  will  impose  high  demands 
upon  our  statesmanship  and  call  for  the  exercise 
of  an  unselfish  patriotism. 


383 


INDEX 


Acre-foot,  measurement   by,  109, 

118-121. 

Adams,  Frank,  ix. 
Adjudication  of  water  rights,  68, 
80-82,  229-233. 

Colorado,  147-159. 

Kansas,  290. 

Montana,  302-308. 

Utah,  225-227. 

Wyoming,  250-266. 
Administration  of  streams,   Colo- 
rado, 159-167. 
Agricultural  Department,  work  of, 

viii. 

Ahtanum  Creek,  Washington,  316. 
Alta  Land  Co.  v.  Hancock,  194. 
Altitude,  influence  of,  7. 
American  Fork  River,  Utah,  divi- 
sion of,  233. 

Anaheim,  California,  colony,  45. 
Annual  water  rentals,  89-92. 
Appropriation : 

California  law,  187-188. 

Doctrine  of,  60-87. 

Notices  of,  73-78. 

Utah  law,  222-224. 
Arid  region : 

Possibilities,  2. 

Topography,  4-5. 
Arizona,  275-285. 

Agriculture  in,  15. 

Cementing  materials  in  water,i25. 

Evaporation,  127. 

Laws,  276-278. 

Posting  notices,  68. 

Storage,  283-284. 

Arkansas  River,  153,  176-177,  289, 
320.  335-343.  354-355- 

2C  335 


Arkansas  Valley  Canal  Company, 
177. 

Baring  Brothers,  344. 

Bear  Creek,  Colorado,  rights  to, 

151- 

Bear  River,  242,  330. 
Bear   River  Canal,  Utah,  20,  56, 

244-245. 

Beneficial  use  as  basis  of  right,  67. 
Big  Horn  River,  355. 
Big  Thompson   River,   Colorado, 

151,  172. 

Bitter  Root  Valley,  Montana,  298. 
Black  Hills,  irrigation,  296. 
Board  of  control,  Wyoming,  252- 

266. 

Boggs,  E.  M.,  75. 
Boise  River,  Idaho,  76,  310. 
Bond,  J.  L.,  146. 
Boulder,  Colo.,  45. 
Boulder  Creek,  Colo.,  151. 
Bruneau  River,  Nevada,  312. 

Cache  Creek,  California,  litigation 

over  rights,  198-202. 
Cache  la  Poudre  River,  Colorado, 

144,  145,  149,  151,  172,  355. 
California,  180-219. 

Acquirement  of  land  by  irriga- 
tion companies,  34. 

Climate,  180-182. 

Early  irrigation,  45. 

Future  development,  217^219. 

Irrigating  season,  120. 

Irrigation  district  law,  209^213. 

Irrigation  statistics,  183. 

Land  values,  21,  184. 


INDEX 


California  (cont.)  : 
Litigation,  197-209. 
Miner's  inch,  108. 
Posting  notices,  68. 
Rates  for  water,  214-216. 
Records  of  water  rights,  188-190. 
Results  of  irrigation,  48. 
Right  of  appropriation,  187-188, 

190,  195,  196. 
Rights    to    underground   water, 

190-192. 

Riparian  rights,  192-196. 
Value  of  water,  184. 
Water-right    agreements,     202- 

203. 

Water-right  records,  73. 
Wheat  farming,  185-186. 
California  Water  and  Forest  Asso- 
ciation, 218. 

Galloway  Canal,  California,  186. 
Canada : 
Northwest    Irrigation    Act,  209, 

326-327. 

Perpetual  licenses,  62. 
Canal   organization  and  manage- 
ment, Utah,  233-239. 
Carey  act,  24-27,  99,  272-274,  345, 

382. 

Carlsbad,  New  Mexico,  286. 
Carson  River,  Nevada,  312. 
Catlin  Canal  Company,  177. 
Cementing  canals,  125. 
Center  Creek  Irrigation  Company 

v.  Thomas,  229. 
Central  Canal,  California,  350. 
Chittenden,  H.  M.,  report  on  res- 
ervoirs, 137. 
City  Creek,  Utah,  value  of  rights, 

86. 

Clark  v.  Cambridge  and  Arapahoe 
Irrigation  and  Improvement 
Company,  294. 
Clear  Creek,  Colorado,  rights  to, 

IS*- 
Climate,  3-4. 

Effect  of  irrigation,  339-341. 
Code,  W.  H.f  ix. 


Colorado,  143-179. 
Acquirement  of  land  by  irriga- 
tion companies,  24. 
Adjudication    of  water    rights, 

146-159- 

Administration  of  streams,  159- 
167. 

Ancient  irrigation,  41. 

Constitutional  provisions,  144. 

Early  irrigation,  143-144. 

Exchange  of  water,  163. 

Filing  claims,  68. 

Fixing  rates  for  water,  168. 

History  of  water  laws,  144-146. 

Irrigated  area,  349. 

Irrigation  districts,  179. 

Law    requiring    measuring    de- 
vices, 112-113. 

Laws  of,  83, 144,  208-209. 

Leasing  State  lands,  39. 

Loans  of   appropriations,    175- 
179. 

Records  of  water  rights,  144. 

Reservoirs,  169-173,  356. 

Results  of  irrigation,  48. 

Sale  of  water  rights,  173-175. 

State  engineer,  112,  159, 164-165. 

Superintendents'  duties,  165. 

Water  commissioners,  145,  157- 
158, 161-164. 

Water  districts,  159-161. 

Water  divisions,  160-161. 

Water-right  contracts,  121. 
Colorado  River,  46. 
Columbia  River,  5,  315. 
Construction  of  irrigation  works, 

48-50. 

Continuous  flow,  rights  to,  81. 
Contract  water  rights,  88-99. 
Cooperation,  need  of,  380-382. 
Cooperative   canals,  44-45,  50-57, 

98-99. 

Corporation  canals,  57-59. 
Cost  of  water,  129-130. 
Crawford  Company  v.  Hathaway, 

294. 
Crisis  of  1893,  influence  of,  344-345. 


386 


INDEX 


Crocker-Huffman  Canal,  Cali- 
fornia, 186. 

Cubic  foot  per  second,  measure- 
ment by,  101,  107-109,  118- 

121. 

Deseret  News,  221. 
Deseret,  State  of,  221. 
Desert  Land  Law,  16-17. 

Abuses  under,  21-22,  35. 
Dews,  341. 
Distribution  of  water: 

Continuous  flow,  230-231. 

Nebraska,  294. 

Rotation,  133,  144-145. 

Utah,  229-232. 

Wyoming,  270-271. 
Distribution  of  stored  water,  358- 

360. 

Dobson,  Adna,  ix. 
Drainage,  Utah,  243. 
Dry  farming,  Montana,  298. 
Duty  of  water,  116-142. 

Assumed  in  decrees,  Colorado, 

153-154. 
Nebraska,  293. 

Necessity  for  knowledge  of,  371. 
Wyoming,  271. 

East    Canyon    Creek    Reservoir, 

Utah,  243. 
Elliott,  Judge,  156. 
Europe,  water  rights  attached  to 

land,  84. 
Evaporation,  loss  of  water  by,  127, 

136. 
Exchange  of  water,  Colorado,  163. 

Fencing  the  public  lands,  28-35. 

Field,  J.  E.,  ix. 

Fixing  rates,  California,  214-216. 

Foote,  Mary  Hallock,  310. 

Forest  preservation,  need  of,  379- 

380. 

Fort  Collins,  Colorado,  45, 144. 
Fortier,  S.,  ix. 
Seepage  measurements  by,  125- 

126. 


Fort  Lyons  Canal  Company,  177. 
Franchises  for  water,  375-377. 
Future  development,  344-383. 

Gage  Canal,  California,  system  of 

distribution,  133. 
Gallatin,  Albert,  report  on  public 

lands,  14. 

Gallatin  Valley,  Montana,  298. 
Gila  River,  Arizona,  284. 
Grand  River,  245,  353. 
Grazing  lands,  vii-viii. 

Conflicts  over,  29-33. 

Importance  of,  7. 

Leasing,  33,  38-40. 

Management  of,  27-40. 

Montana,  297. 

Need  of  reforms,  380. 

Overstocking,  35,  38. 
Greeley,  Colorado,  44-45,  144,  145. 
Greene,  J.  S.,  ix,  176. 
Green  River,  245,  353. 
Gould  v.  Stafford,  194. 
Government  construction  of  irriga- 
tion works,  348-383. 

Hamilton,   Alexander,    land    laws 

proposed  by,  14. 
Harte,  Bret,  185. 

Hathmati  Canal,  losses  from,  124. 
Hemet  Reservoir,  California,  195. 
High  Line  Canal,  Colorado,  58. 
History  of  irrigation,  41-59. 
Homestead  law,  14-16. 

Abuses  under,  20-21,  35-38. 
Honey    Lake    Valley,  California, 

claims  to  water,  190. 
Howell  v.  Johnson,  334-335. 
Humboldt  River,  Nevada,  312, 363, 

Idaho,  309-312. 
Development  under  Carey  Act, 

25; 

Early  irrigation,  45. 
Irrigated  area,  349. 
Posting  notices,  68. 
State  engineer,  311. 


387 


INDEX 


I  dado  (cont.)  : 

Tax  on  sheep,  34. 
Inch,    measurement    by,    102-107, 

108,  118-121. 
Indians,  irrigation  by,  41. 
Interior  Department,  work  of,  viii. 
Interstate  rights,  328-343,  372-373, 

377-378. 
Irrigable  lands : 
Extent,  5-6. 
Location,  362-363. 
Irrigable  public  lands,  353. 
Irrigating  season : 
Diagram  showing,  119. 
Length,  120. 

Irrigating  stream,  109-111,  237. 
Irrigation  : 

Effect  on  climate,  339-341. 
Extent  and  results,  46-48. 
.  Influence  on  other  industries,  9- 

10. 

Irrigation  districts,  345,  381-382. 
California,  209-213. 
Colorado,  179. 
Utah,  234. 

Irrigation  Investigations,  U.  S.  De- 
partment of  Agriculture,  81, 
I2i,  122,  138,  347. 

Italy,  Baird  Smith's  history  of  irri- 
gation, 376-377. 
Water  ownership  in,  62,  365. 

Jackson  Lake,  9. 

Jamda  Canal,  Bombay,  losses  from, 

124. 

Johnston,  C.  T.,  ix. 
Jordan  River,  Utah,  224-226. 

Division  of  water,  239. 

Extension  of  use,  241-242. 

Water  rights,  226-227. 

Kansas,  288-290. 
Irrigation  laws,  322. 
Irrigation  works,  336. 
Posting  notices,  68. 
Riparian  rights,  289. 
Water  bailiffs,  290. 
v.  Colorado,  335-343. 


Kibbey,  Judge,  279. 

King's  River,  California,  flow,  190. 

Lacey,  J.  F.,  bill  for  leasing  public 

lands,  40. 

Laguna  Canal  Company,  177. 
Lake  Tahoe,  329. 
Land  laws,  effect  on  development, 

15-23,  35i. 

Larimer  and  Weld  Canal,  Colo- 
rado, 50. 
Laws: 

Arizona,  276-278. 

California,  187-188. 

Character,  vi. 

Colorado,  83,  144,  208-209. 

Kansas,  322. 

Montana,  299. 

Nebraska,  82,  167,  291-292,  366. 

Nevada,  312-314. 

South  Dakota,  326. 

Utah,  112,  220-224. 

Wyoming,  82,  83,  167,  209,  248- 
252,  366-367. 

For  disposal  of  public  lands,  13- 

23- 

Leasing  public  lands,  33,  39-40. 
Leasing  railroad  lands,  40. 
Leasing  State  lands,  39-40. 
Lesser  Snake  River,  330. 
Licenses  to  use  water,  62,  63,  82. 
Litigation : 

California,  197-209. 

Effect  on  development,  346,  350- 

351- 

Live  stock  associations,  29. 

Logan  River,  Utah,  storage  possi- 
bilities, 139-141,  241,  242. 

Longmont,  Colorado,  45,  144. 

Los  Angeles  River,  California : 
Claims  to,  75. 
Litigation  over  rights  to,  197-198. 

Losses  from  seepage  and  evapora- 
tion, 123-127,  136. 

Loup  River,  Nebraska,  293. 

Loveland,  Colorado,  45. 

Lux  v.  Haggin,  193,  194,  196. 


388 


INDEX 


McCune,  A.  J.,  158. 
McFadden  v.  Supervisors,  216. 
Marsh,  G.  P.,  367. 
Measurement  of  water,  100-115. 
Methods  of  irrigating,  48-50. 
Mexican  land  grants,  60. 
Middle  Creek,  Montana,  rights  to, 

304-308. 

Military  bounty  lands,  area  of,  13. 
Milk  River,  Montana,  297. 
Mills,  F.  J.,  opinion  on  necessity 

for  storage,  138. 
Miner's  inch,  value  in  cubic  feet 

per  second,  108. 
Missouri  River,  5,  46,  71,  297,  299, 

301-  353- 

Mojave  Desert,  2. 
Montana,  297-308. 

Adjudication    of   water    rights, 
302-308. 

Dry  farming,  298. 

Early  irrigation,  45-46. 

Grazing  lands,  297. 

Irrigated  area,  298. 

Irrigating  season,  120. 

Laws,  299. 

Leasing  state  lands,  39. 

Nature  of  water  rights,  300. 

Posting  notices,  68. 

Water-right  records,  301. 
Mormons,  42-44,  55,  83,  233,  309. 
Musselshell  River,  301. 

Navigation  rights,  332-333. 
Nebraska,  290-295. 

Acquirement  of  water  rights,  82. 

Distribution  of  water,  294. 

Laws,  82,  167,  291-292,  366-367. 

Permits  for  water,  68. 

Water  commissioners,  294. 
Nesters'  war,  31. 
Nettleton,  E.  S.,  ix,  xai.  166. 
Nevada,  312-314. 

Early  irrigation,  45-46. 

Evaporation,  127. 

Irrigation  laws,  312-314. 

Tax  on  sheep,  34. 


New  Mexico,  285-288. 

Ancient  irrigation,  41. 
New  South  Wales,  riparian  rights, 

328. 

Norris,  Frank,  185. 
North    Piatte    River,  71,  331—332, 

355- 

Northwest  Irrigation  Act,  Canada, 
209. 

Ogden  River,  Utah,  storage,  242. 
Oregon,  317-318. 

Organization  and  management  of 
canal  companies,  Utah,  233- 

239- 
Overland  Trail,    irrigation   along, 

44,  143- 
Owyhee  River,  312. 

Payette  River,  Idaho,  310. 
Pecos  River,  8,  285-286,  357. 
Perpetual  rights,  sale  of,  93-98. 
Piatte  River,  293,  363. 
Posting  notices  of  appropriations, 

68-74. 

Powell,  J.  W.,  347. 
Preemption  law,  14,  16, 18. 
Preferred  uses  of  water,  66. 
Priority : 

Doctrine  of,  65. 

Wyoming,  249. 
Private  property  in  water,  365. 
Pro-rating,  96. 

Prove  River,  division  of,  229-230. 
Public   construction    of  irrigation 

works,  58,  234-235. 
Public  control  of  streams,  82,  145, 

293.  369-375. 
Public  domain : 
Area  of,  13. 
Disposal  of,  13-23. 
Fencing,  35. 
Irrigable,  353. 

Pumping  water  for  irrigation,  141, 
191-192. 


j  Quarantine  laws,  34. 

389 


INDEX 


Railroad  land  grants,  area  of,  13. 
Railroad  lands : 

Leasing,  40. 

Purchase  of,  24. 
Rainbelt  theory,  290. 
Range  live  stock  business,  collapse, 

35-36. 
Rates  for  water,  90-92. 

California,  214-216. 

Colorado,  168. 
Records  of  water  rights,  67-80. 

California,  188-190. 

Montana,  301. 

Utah,  223. 

Relation,  doctrine  of,  65-66. 
Reservoirs : 

Colorado,  169-173,  356. 

Necessity  for,  137,  141. 

Pecos  River,  New  Mexico,  287. 

Profits  from,  243. 

Public,  358-362. 

Public  aid  for,  in  New  Mexico,  287. 

Silting,  9. 

Utah,  357. 

Value  of,  357. 

Wyoming,  356. 
Return,  seepage,  341. 
Returns  from  irrigation,  49. 
Rio  Grande,  8,  285,  286. 
Rio  Grande  Valley,  early  irrigation, 

4*- 

Riparian  rights,  62,  319-328,  364. 

California,  192-196. 

Kansas,  289. 

Nebraska,  293-294. 

Washington,  316-317. 
Riverside,  California,  colony,  45. 
Rogers,  Platt,  156. 
Roosevelt,  Theodore,  360, 367. 
Ross,  D.  W.,  ix,  130-131,  311. 
Ross,  Erskine  M.,  193,  215. 
Rotation,  influence  on  duty,  133-136. 
Rustling,  32. 

Sacramento  River,  4. 
St.  Vrain  Creek,  Colorado,  rights 
to,  151. 


Sale  of  water: 

Colorado,  173-175. 

Montana,  302. 
Salmon  River,  Nevada,  3x2, 
Salton  Desert,  7. 
Salt  River,  Arizona : 

Claims  to,  277. 

Division  of,  279-281,  284. 

Practices  along,  137. 
Salt  River  Valley,  Arizona,  2. 

Ancient  irrigation,  41. 

Irrigated  area,  349. 

Pumping,  141. 
San  Joaquin  River,  California,  74, 

190. 
Santa    Clara    Valley,    California, 

pumping,  141,  192. 
Seepage : 

Defined,  124. 

Loss  of  water  by,  123-126,  136. 

Methods  of  preventing,  125-126. 

Return  to  streams,  341. 
Sevier  River,  Utah,  242,  246. 
Sheep  on  the  public  lands,  29-30, 

33- 

Shoshone  Falls,  10. 

Smith,  Baird,  "  Irrigation  in  Italy," 
376-377. 

Smythe,  William  E.,  ix,   18,   189, 
274. 

Snake  River,  4, 9,  46,  353. 

Soldiers'  widows,  homestead  filings, 
36. 

Soule,  Frank,  74. 

South  Dakota,  295-296. 
Laws,  326. 

Souther  v.  San  Diego  Flume  Com- 
pany, 216. 

South  Platte  River,  71, 88,  143, 145, 

IS*- 

Spain,  380. 

Spanish  Fork  River,  Utah,  rights 

to,  226. 

Spanish  land  grants,  24-60. 
Sprague  v.  Heard,  194. 
State  engineer : 
Colorado,  112,  159,  164-165. 


39° 


INDEX 


State  engineer  (cont?)  : 

Idaho,  311. 

South  Dakota,  296. 

Utah,  239-240. 

Wyoming,  112,  261,  268. 
State  lands,  influence  on  irrigation 

development,  23-24. 
States,  lands  granted  to,  13. 
Statistics,  lack  of,  46-47. 
Storage  : 

Arizona,  283-284. 

Effect  on  flow  of  streams,  342. 

Necessity  for,  8,  354-356. 

New  Mexico,  287. 

Rights  for,  in  Wyoming,  272. 

Utah,  241-245. 
Sunnyside     Canal,     Washington 

58. 
Swamp  land    laws,  area    granted 

under,  13. 
Sweetwater    reservoir,    California, 
195- 

Taxing  flocks,  34. 
Teele,  R.  P.,  ix, 
Texas: 

Filing  claims,  68. 

Land  laws,  15. 
Timber  culture  law : 

Provisions,  16. 

Repeal,  18. 

Truckee  River,  312,  329,  363. 
True,  A.  C.,  ix. 

Turlock  Canal,  California,  213. 
Twenty-four  hour  inch,  133-134. 
Twin  Lakes  Company,  177. 

Underground  rivers,  6. 
Underground  water : 

Rights  in  California,  190-192. 
Rights  in  Kansas,  289. 
Union  Colony,  44-45,  52-54,  58. 
U.  S.    Geological    Survey,   stream 

measurements  by,  138. 
United  States  v.  Rio  Grande  Dam 
and     Irrigation    Company, 
333- 


Utah,  220-246. 

Adjudication  of  water  rights,  225- 
227. 

Bear  River  Canal,  244-245. 

Canal  organization  and  manage- 
ment, 233-239. 

Classification  of  rights,  66. 

Controversies  over  water  rights, 
232-233. 

Cooperative  ditches,  55-56. 

Division  of  water,  229-232. 

Drainage,  243. 

Early  irrigation,  42-44. 

Early  laws,  220-224. 

Future  development,  241-246. 

Grand  River,  245. 

Green  River,  245. 

Irrigation  districts,  234. 

Law  governing  measurement  of 
water,  112. 

Leasing  State  lands,  40. 

Nature  of  water  rights,  227-232. 

Posting  notices,  68. 

Primary  rights,  228. 

Reservoirs,  357. 

Secondary  rights,  228. 

Sevier  River,  246. 

State  engineer,  239-240,  244. 

Storage,  241-245. 

Water  commissioners,  224,  240. 

Water  power,  226. 
Utah  Lake,  225,  241. 

Value  of  water,  California,  184. 

Verde  River,  Arizona,  rights  to  the, 
278. 

Victoria,  Australia,  report  on  water- 
supply,  367. 
riparian  rights,  328. 

Walker  River,  Nevada,  312. 
Warren,  F.  E.,  380. 
Washington,  314-316. 
Posting  notices,  68. 
Vater,  value  of,  8. 
Vater  bailiffs,  Kansas,  290. 


39 1 


INDEX 


Water  commissioners  : 
Arizona,  279. 
Colorado,  84,  155,  157-158,  161- 

164. 

Duties  of,  84. 
Nebraska,  294. 
Utah,  224,  240. 
Wyoming,  248,  270-271. 
Water  fronts,  control  of,  35-37. 
Water-power  : 

Development  of,  10. 
Rights  for,  226-227. 
Water  registers,  112-115. 
Water-right  contracts,  88-99. 
Arizona,  281-282. 
Colorado,  167-168. 
Duty  assumed  in,  121,  136,  154. 
Effect  on  development,  351. 
Influence  on  duty,  128,  131. 
Terms  of,  95-98. 
Water-right  records,  69-80. 
California,  188-190. 
Montana,  301. 
Utah,  223. 
Water  rights  : 
Acquirement,  60-87. 
Adjudication,  68,  80-82. 
Arizona,  276-284. 
Attached  to  land,  22,  23,  25,  83, 
84,  89,  196,  311,347,366-368. 
California,  188. 
Acquirement,  188. 
Agreements,  202-203. 
Nature,  215. 
Colorado  : 

Adjudication,  147-159. 
Loans,  175-179. 
Nature,  152. 
Sale,  173-175. 
Europe,  84. 

Interstate,  328,  377-378. 
Kansas,  290. 
Montana,  300. 
Nature  of,  vi-vii,  82-87,  364-369. 


Water  rights  (cont.)  : 

Nebraska,  291. 

New  Mexico,  288. 

Sale  of,  86. 

Utah : 

Acquirement,  220-224. 
Nature,  227-232. 

Value  of,  86-87. 

Wyoming,  82,  253,  266-269. 
Weber  River,  Utah,  70,  242. 
Wichita  River,  8. 
Wilson,  James,  378. 
Wilson,  J.  M.,  ix,  201. 
Works,  John  D.,  194. 
Wright    law,    California,  209-213, 

345- 

Wyoming,  247-274. 
Acquirement  of  water  rights,  82, 

253,  266-269. 
Adjudication  of  water  rights  by 

board  of  control,  253-266. 
Board  of  control,  252-266. 
Carey  law,  25,  272-274. 
Distribution  of  water,  270-271. 
Early  irrigation,  45-46. 
Evaporation,  247-248. 
Laws,  82,  83,  167,  209,  248-252, 

366-367. 

Leasing  State  lands,  39-40. 
Priority,  249. 
Reservoirs,  356. 
State  engineer,  112,  261,  268. 
Storage  rights,  272. 
Water  commissioners,  248,  270- 

271. 
Wyoming  Development  Company, 

20,  58. 

Yakima   River,  Washington,  315, 

363- 

Yellowstone  Lake,  9,  299. 
Yellowstone  River,  4, 9, 70, 297, 301, 

353,  363. 
Young,  Brigham,  55. 


392 


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Renewals  and  recharges  may  be  made  4  days 

prior  to  due  date 


DUE  AS  STAMPED  BELOW 


JAN  2 1 1989 


BY 


APR  1  2  1988 


UC  SANTA  CRUZ 


